Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1168 OF 2012

[Arising out of S.L.P. (Crl.) No.3292 of 2010]

State Tr.P.S.Lodhi Colony ....Appellant

New Delhi

Versus

Sanjeev Nanda ....Respondent

J U D G M E N T

DEEPAK VERMA, J.

1.Delay condoned.

2.Leave granted.

3. The solitary question that arises for our

consideration in this appeal is whether

respondent accused deserves to be held guilty

of commission of offence under Section 304 Part

II of the Indian Penal Code (for short IPC) or

the conviction and sentence awarded to him by

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the High Court of Delhi, under Section 304 A of

the IPC should be held to be good and legally

tenable.

4. On 12.04.2010, limited notice was issued to

the respondent by this Court, which reads as

under:

“Issue notice confining to the nature of

offence”.

Facts shorn of unnecessary details as unfolded by

prosecution are mentioned hereinbelow:

5. On the intervening night of 9/10.01.1999,

an unfortunate motor accident took place

involving BMW Car No.M-312LYP. At the

relevant point of time, it is no more in

dispute that offending vehicle BMW was being

driven by respondent. As per prosecution

story, the said vehicle was coming from

Nizamuddin side and was proceeding towards

Lodhi Road. Just at the corner from where

Lodhi Road starts, seven persons were standing

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on the road at about 4.00 a.m. In the said

car, Manik Kapur and Sidharth Gupta (since

discharged) were also sitting.

6. As per prosecution story, Manoj Malik

(P.W.2) had started from his house to leave

friends Nasir, Mehendi Hasan and his friend

Gulab at Nizamudin Railway Station on foot.

When they reached the petrol pump of Lodhi

Road, three police officials of checking squad,

Constables Rajan, Ram Raj and Peru Lal, stopped

them and started checking. In the meantime,

BMW car driven rashly and negligently came from

Nizamuddin side at a high speed and dashed

violently against them. The impact was so great

and severe, that they flew in the air and fell

on the bonnet and wind screen of the car. Some

of them rolled down and came beneath the car.

On account of this, accused lost control of the

vehicle which swerved to right side of the road

and ultimately hit the central verge. The

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persons who had come under the car were dragged

up to that point. Manoj (P.W.2) who had

fallen on the bonnet fell down at some distance

but did not come under the wheels. After

hitting the central verge, car finally stopped

at some distance, respondent came out from the

car and inspected the gruesome site. It is

said that co-passenger Manik Kapur asked the

accused to rush from the scene of occurrence.

Injured persons were shouting and crying for

help. But ignoring them, he drove away the car

at high speed towards Dayal Singh College, even

though there were still some persons beneath

the car. In the said accident ultimately six

of them were killed and Manoj (P.W.2) was

injured. Accused then took the car to his

friend Sidharth Gupta’s house at 50, Golf

Links, New Delhi.

7. Prosecution story further goes to show that

there another accused Rajeev Gupta, father of

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Sidharth Gupta with the help of two servants,

accused Shyam and Bhola washed the car and

destroyed the material evidence.

8. Prosecution alleges that PW.1 Hari Shankar,

attendant at the petrol pump saw the accident

and immediately informed telephonically his

employer Brijesh Virmani, (P.W.70) who in turn

informed the PCR at No.100. On getting the

necessary information, police acted with

promptitude. The telephonic information was

recorded as DD No. 27-A.

9. Pursuant to the information being received,

SI Kailash Chand reached the spot. By that

time few PCR vans had already reached as the

news about the accident was flashed. First to

reach the spot was A.S.I. Devendra Singh

(P.W.36), who carried Manoj Malik to the

hospital. The other PCR vans took the

remaining injured /deceased persons to the

hospital.

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10.S.I. Kailash Chand (P.W.58) wrote a Rukka

describing the scene of crime. As per his

description, he had found three persons, two

constables Ravi Raj and Rajan and one person

dead on the spot. He also came to know that

other four injured persons were taken in

another PCR van to the hospital. He found one

broken number plate and other broken parts of

the car. When plate was reassembled, the number

read as M312LYP BMW. One black colour piece of

bumper and rear view mirror were found

scattered between 100 to 150 feet. Head of one

person was found crushed. There were skid

marks of the tyres of the vehicle on the spot

for a long distance. The body of another

constable namely, Ram Raj was found crushed and

his right leg was found at a distance of 10 to

15 feet away. Abdomen of Constable Rajan

Kumar was completely ripped open and blood was

oozing out on the road. All the three dead

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bodies were sent to All India Institute of

Medical Sciences (AIIMS) by ambulance.

11.Thus, it was clear to SI Kailash Chand that

offending vehicle was a black colour BMW car

having the aforesaid number plate. Looking to

the nature of crime said to have been

committed, he recommended registration of FIR

under Section 338/304 IPC. The said Rukka was

dispatched to the Police Station, where formal

FIR was registered.

12.S.I. Jagdish Pandey (P.W.13) also reached the

spot. He found a trail of oil on the road

starting from the scene of offence. He, thus

followed the trail and was able to reach 50

Golf Links. The gate of the house was closed.

Jagdish P.W.13 peeped through the side hinges

of the gate, and found accused Rajeev Gupta,

Bhola Nath and Shyam Singh washing damaged

black BMW car. He tried to get the gate

opened, but failed. He then gave a message to

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SHO Lodhi Colony, Ms. Vimlesh Yadav who reached

there with S.I. Kailash Chand and the gate was

then got opened. This car was not having any

number plate. The broken pieces collected from

the spot matched with BMW car, other parts

collected from the scene fitted well, at the

respective places where the car was damaged.

Some blood was also noticed in the rear left

wheel of the car. On enquiries being made,

accused Rajeev informed that car belonged to

respondent Sanjeev Nanda, a friend of his son

Sidharth Gupta.

13. Thereafter, S.I. Ulhas Giri went to the house

of the accused Sanjeev Nanda at Defence Colony.

He brought accused Sanjeev Nanda, Manik Kapur

and Sidharth Gupta to 50 Golf Links. All the

accused were sent for their medical

examination. Respondent accused had sustained

an injury on the lip as noticed by Dr. T.Milo

(P.W. 10) who had prepared the MLC. He also

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recorded that he was informed by Head Constable

with regard to history of consuming alcohol

previous night. He also noted that a smell of

alcohol was present even though, the speech of

accused Sanjeev was coherent but gait unsteady.

Sample of blood was taken on the same day at

about 12.00 noon which was sent for medical

examination and after testing, alcohol presence

of 0.115% milligram per 100 millilitre was

recorded. This has been proved by Dr.

Madhulika Sharma (P.W. 16).

14. It is pertinent to mention that no Breath

Analyzer or Alco meter was used. Prosecution

has not assigned any cogent or valid reasons

for this default.

15. After completion of the investigation, charge

sheet was filed against the accused in the

Court of Additional Sessions Judge, New Delhi.

Respondent was charged under Sections 201, 304

(I), 308 read with 34 of the IPC. The case was

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registered as Sessions Case No. 25/1999.

16. It is important to mention here that in fact,

all the material witnesses had turned hostile.

P.W.1 Hari Shankar, the alleged eye witness,

P.W.2 Manoj Malik, the injured witness turned

hostile and did not support the prosecution

story. The infamous Sunil Kulkarni was

examined as court witness, who alone supported

the prosecution story and has been believed by

the Trial Court as trustworthy. Trial Court

recorded that testimony of this witness alone

as to how the accident took place is worthy of

credence and the same is well corroborated by

the scene of crime.

17.On conclusion of trial, after appreciating the

evidence available on record, the trial court

found respondent guilty of commission of

offence under Section 304 Part II of the IPC

and awarded him a jail sentence of five years.

He was acquitted of other charges. However,

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accused Rajeev Gupta, Shyam Singh and Bhola

Nath were convicted under Section 201 IPC.

Rajeev Gupta was sentenced to undergo a

sentence of one year and Bhola Nath and Shyam

Singh to undergo a sentence of six months each.

18.Feeling aggrieved by the said judgment and

order of conviction, respondent filed Criminal

Appeal No. 807 of 2008 in the High Court of

Delhi at New Delhi. Co-accused, Rajeev Gupta,

Bhola Nath and Shyam filed Criminal Appeals No.

767 of 2008 and 871 of 2008 respectively

against their conviction and sentences awarded

to them under section 201 of the IPC.

19. The learned Single Judge considered the matter

at great length and thereafter found the

accused Sanjeev Nanda guilty of commission of

offence under Section 304 A of the IPC and

reduced the sentence to two years. While

converting the conviction of said accused from

Section 304 Part II to 304 A, the High Court

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has disbelieved the testimony of Sunil Kulkarni

which was the basis for the trial court to come

to a conclusion that the case fell under

section 304 Part II. The High Court has also

held that though the act of accused amounted to

rashness and negligence endangering the lives

of others, since there was no intention or

knowledge of causing death, no case for

conviction of accused under section 304 Part II

was made out.

20.Other accused Rajeev Gupta, Shyam and Bhola

were found guilty of commission of offence

under Section 201 of the IPC and were awarded

six months’ and three months’ RI respectively.

As mentioned hereinabove, they have preferred

separate appeals against the said judgment and

order of conviction, which were heard

separately. Their appeals have been allowed and

they have been acquitted of the charge under

Section 201 of the IPC.

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21. Even though lengthy arguments have been

advanced by learned Additional Solicitor

General Mr. Harin P. Raval, to show the manner

in which the investigation was conducted,

suggesting many lacunae were left in the same,

at the instance and behest of respondent

accused, who not only happens to be a rich

person but influential as well. Much was also

argued assigning the reasons as to how relevant

and material witnesses (P.W.1) Hari Shankar,

and (P.W.2) Manoj, injured witness, had turned

hostile. It was also then argued that the

matter was carried to higher court against

every order. Thus, Respondent tried his best

to see to it that Sessions Trial is not

concluded early. All these facts have been

mentioned not only by the Trial Court but have

been reiterated by learned Single Judge also.

22.In the light of this, we have heard Mr. Harin

P.Raval learned Additional Solicitor General

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ably assisted by Mr. Siddharth S. Dave,

Advocate for Appellant and Mr. Ram Jethmalani

learned Senior Counsel with Mr. S. Kapur,

Advocate and other Advocates for the respondent

and have microscopically examined the materials

available on record.

23.The arguments of Mr. Raval are as follows:

a) Admittedly respondent was not holding

any valid Indian licence to drive a

vehicle in India.

b) As per the evidence of (P.W.10) Dr.

T. Milo, and (P.W.16) Dr. Madhulika,

he was in an intoxicated condition,

at the time of accident.

c) He was driving a powerful machine

like BMW in excessive speed in a rash

and negligent manner and certainly

beyond reasonable control over it.

d) His negligence coupled with

intoxication would lead to culpable

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homicide with knowledge.

e) He knew that persons have been

crushed and some of them were

underneath his car, yet he continued

to drive the vehicle till all the

injured were disentangled from the

vehicle.

f) He fled away from the scene of crime,

did not render any help to the

injured. Not only this, he did not

report the matter to the police and

tried to obliterate the evidence

available.

g) Even if intention may not be

attributed to him but at least he had

knowledge of what he had done, thus

ingredients mandated under Section

304 Part II IPC were fully met.

h) Thus, High Court committed grave

error in interfering with a well

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reasoned order of the Trial Court.

Respondent should thus be held guilty

of commission of offence under

Section 304 Part II IPC and sentence

be awarded accordingly.

24.We have been taken through almost the entire

documentary and oral material evidence adduced

by prosecution. Following authorities have

been cited by the Appellant to show that such

type of acts would fall precisely under Section

304 Part II of the IPC and not under Section

304 A, as has been held by the learned Single

Judge in the impugned order.

25.These authorities are reported as under:

a) (1976) 1 SCC 889 State of Gujarat Vs.

Haidarali Kalubhai where distinction

has been drawn with regard to case

falling under Sections 304 A and 304

Part II of the IPC. In the said

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judgment, proper and correct effect

of Sections 299 and 300 of the IPC

has also been discussed. This

judgment has been followed by this

Court in 2008 (1) SCC 791 Naresh Giri

Vs. State of M.P.

b) (1981) 4 SCC 245 Kulwant Rai Vs.

State of Punjab, highlights main and

basic ingredients of Section 304 Part

II.

c) (2000) 5 SCC 82 Dalbir Singh Vs.

State of Haryana, has been cited to

show that as far back as in the year

2000, drunken driving was heavily

criticized and a warning was issued

to all those who may be in the habit,

to be more careful and cautious. It

further went on to say that no

benefit to the accused found guilty,

can be granted under the Probation of

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Offenders Act, 1958.

d) (2004) 1 SCC 525 State of

Maharashtra Vs. Salman Salim Khan was

cited to show that in identical

circumstances where the accused was

not holding a valid motor driving

licence and was under influence of

alcohol, he would be held to have

committed offence under section 304

Part II of the IPC.

e) The last in the series is (2012) 2

SCC 648 Alister Anthony Pareira Vs.

State of Maharashtra to show that

this Court has already taken a stern

view where person involved in

commission of such offence was

driving a vehicle in a drunken

condition and has to be dealt with

severely so as to send proper and

correct message to the society.

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26.On the other hand, Mr. Ram Jethmalani, learned

Senior Counsel appearing for respondent/accused

contended that looking to the facts and

features of the case and taking into

consideration the following mitigating

circumstances, no case for interference is made

out:

a) Offence was said to have been

committed in the year 1999, almost 13

years back.

b) Respondent was aged 21 years at that

time, and was prosecuting his course

in foreign country. He had come to

India on a short holiday.

c) He has already undergone the sentence

of two years awarded by High Court

and only thereafter, after the period

of limitation of filing the appeal

had expired, he got married to his

long time love, now they are blessed

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with a daughter.

d) His behaviour and conduct in jail was

extremely good, which is evident from

the two affidavits filed in support

of the respondent by two NGOs.

e) Fact cannot be given a go-by that it

was a cold wintry night of 9/10

th

January, 1999, thus possibility

cannot be ruled out that visibility

must have been poor due to fog.

f) He had neither any previous criminal

record nor has been involved in any

criminal activity ever since then.

The case of Alister Anthony (supra)

does not apply to the facts of this

case.

g) It was contended that respondent has

already learnt sufficient lesson at

young age and no useful purpose would

be served, if he is sent to jail

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again.

h) The victim and/or families of

deceased have been paid handsome

amount of compensation of Rs.65 lacs,

in the year 1999 itself, i.e. Rs. 10

lacs each to the families of the

deceased and Rs.5 lacs to the

injured.

i) It would not only be humiliating but

great embarrassment to the

respondent, if he is again sent to

jail for little more period, over and

above the period of two years awarded

and undergone.

j) He had neither intention nor

knowledge of the ultimate

consequences of the offence said to

have been committed.

Learned Senior Counsel for the Respondent Mr.

Ram Jethmalani further contended that it would not

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fall within the parameters of Section 304 Part II,

IPC. The impugned judgment and order calls for no

interference. Even otherwise, looking to facts and

features of the case, no case for taking any other

view is made out.

27. After having critically gone through the

evidence available on record, we have no doubt

in our mind that accident had occurred solely

and wholly on account of rash and negligent

driving of BMW car by the respondent, at a high

speed, who was also intoxicated at that point

of time. This fact has been admitted by the

Respondent-Accused at the Appellate stage in

the High Court that at the relevant point of

time, Respondent was driving the vehicle and

had caused the accident but even then, it would

be only his rash and negligent act, attracting

Section 304A of IPC only. Even though it is

difficult to come to the aforesaid conclusion,

since he was in an inebriated condition. For

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the simple reason that he had already driven

almost 16 kms from the place where he had

started, to the point where he actually met

with the accident without encountering any

untoward incident would not go absolutely in

favour of the Respondent. There is no

evidence on record that they had consumed more

liquor on their way also. No such material

objects were recovered from the vehicle, to

suggest that even while driving they were

consuming liquor. One may fail to understand

if one could drive safely for a distance of 16

kms, then whether the effect of intoxication

would rise all of a sudden so as to find the

respondent totally out of control. There is

nothing of that sort but it cannot be denied

that he must have been little tipsy because of

the drinks he had consumed some time back. It

is, indeed, extremely difficult to assess or

judge when liquor would show its effect or

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would be at its peak. It varies from person to

person.

28.As mentioned hereinabove, prosecution failed to

use either the Breath Analyser or Alco Meter to

record a definite finding in this regard.

Evidence of (P.W.10) Dr. Milo and (P.W.16) Dr.

Madhulika shows that certain amount of

alcoholic contents was still found on

examination of his blood at 12.00 noon, next

day.

29.It is a settled principle of law that if

something is required to be done in a

particular manner, then that has to be done

only in that way or not, at all. In AIR 1936

PC 253 (2) Nazir Ahmad Vs. King Emperor, it

has been held as follows:

“......The rule which applies is a

different and not less well recognized

rule, namely, that where a power is

given to do a certain thing in a

certain way the thing must be done in

that way or not at all. ......”

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30.It has also come on record that seven persons

were standing close to the middle of the road.

One would not expect such a group, at least, at

that place of the road, that too in the wee

hours of the morning, on such a wintry night.

There is every possibility of the accused

failing to see them on the road. Looking to all

this, it can be safely assumed that he had no

intention of causing bodily injuries to them

but he had certainly knowledge that causing

such injuries and fleeing away from the scene

of accident, may ultimately result in their

deaths.

31.It is also pertinent to mention that soon after

hitting one of them, accused did not apply the

brakes so as to save at least some of the

lives. Since all the seven of them were

standing in a group, he had not realized that

impact would be so severe that they would be

dragged for several feet. Possibility also

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cannot be ruled out that soon after hitting

them, respondent, a young boy of 21 years

then, might have gone into trauma and could not

decide as to what to do until vehicle came to a

halt. He must have then realized the blunder he

committed.

32. Respondent, instead of rendering helping hand

to the injured, ran away from the scene, thus

adding further to the miseries of the victims.

It is not a good trend to run away after

causing motor road accidents. An attempt

should be made to render all possible help,

including medical assistance, if required.

Human touch to the same has to be given.

33.An aspect which is generally lost sight of in

such cases is that bodily injuries or death are

as a consequence of accidents. ‘Accident’ has

been defined by Black’s Law Dictionary as

under:

“Accident: An unintended and

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unforeseen injurious occurrence;

something that does not occur in the

usual course of events or that could

not be reasonably anticipated.”

Thus, it means, if the injury/death is caused

by an accident, that itself cannot be attributed to

an intention. If intention is proved and death is

caused, then it would amount to culpable homicide.

34.It is to be noted that in Alister Anthony

Pareira’s case, the earlier two judgments of

this Court reported in (1976) 1 SCC 889 State

of Gujarat Vs. Haiderali Kalubhai, and 2008

(1) SCC 791 Naresh Giri Vs. State of M.P. ,

both rendered by bench of two learned Judges of

this Court, were neither cited nor have been

referred to. Thus, the ratio decidendi of

these cases has not at all been considered in

Alister’s case.

35.In the former case, it has been held in paras 4

and 5 as under:

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“4. Section 304-A carves out a specif-

ic offence where death is caused by do-

ing a rash or negligent act and that act

does not amount to culpable homicide un-

der Section 299 IPC or murder under Sec-

tion 300 IPC. If a person wilfully

drives a motor vehicle into the midst of

a crowd and thereby causes death to some

persons, it will not be a case of mere

rash and negligent driving and the act

will amount to culpable homicide. Each

case will, therefore, depend upon the

particular facts established against the

accused.

5. The prosecution in this case wanted

to establish a motive for committing the

offence against the sarpanch. It was

sought to be established that there was

enmity between the sarpanch and the ac-

cused and his relations on account of

panchayat elections. Some evidence was

led in order to prove that the accused

and his relations were gunning against

the sarpanch for some time after the

latter's election as sarpanch. Even an

anonymous letter was received by the

sarpanch threatening his life which was

handed over to the police by the

sarpanch. Both the Sessions Judge as

well as the High Court did not accept

the evidence appertaining to motive. Mr.

Mukherjee, therefore, rightly and very

fairly did not address us with regard to

that part of the case. Even so, the

learned Counsel submits that the act per

se and the manner in which the vehicle

was driven clearly brought the case un-

der Section 304 Part II IPC.”

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It is further held in the same judgment at

para 10 as under :

“10. Section 304-A, by its own

definition totally excludes the

ingredients of Section 299 or Section

300, I.P.C. Doing an act with the intent

to kill a person or knowledge that doing

of an act was likely to cause a person's

death are ingredients of the offence of

culpable homicide. When intent or

knowledge as described above is the

direct motivating force of the act

complained of, Section 304 A has to make

room for the graver and more serious

charge of culpable homicide.”

It is interesting to note that this judgment

had been a sheet anchor of arguments of both the

learned senior counsel appearing for parties. They

have read it differently and have tried to put dif-

ferent interpretations to the same.

In the latter case of Naresh Giri it has been

held in the Head note as under:

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“Section 304 A IPC applies to

cases where there is no intention to

cause death and no knowledge that the

act done in all probability will cause

death. The provision is directed at of-

fences outside the range of Sections 299

and 300 IPC. Section 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 rash-

ness are essential elements under Sec-

tion 304-A.

Section 304 A carves out a spe-

cific 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 under Sec-

tion 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 knowledge that doing an act was

likely to cause a person’s death is

culpable homicide. When intent or know-

ledge is the direct motivating force of

the act, Section 304 A has to make room

for the graver and more serious charge

of culpable homicide.”

We may profitably deal with definition of

‘Reckless’ as defined in Lexicon, which reads as

under:-

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“Characterized by the creation of a

substantial and unjustifiable risk of

harm to others and by a conscious (and

sometimes deliberate) disregard for or

indifference to that risk; heedless;

rash. Reckless conduct is much more than

mere negligence: it is a gross deviation

from what a reasonable person would do.

(Black, 7

th

Edn. 1999)

Intention cannot exist without

foresight, but foresight can exist

without intention. For a man may

foresee the possible or even probable

consequences of his conduct and yet not

desire them to occur; none the less if

he persists on his course he knowingly

runs the risk of bringing about the

unwished result. To describe this state

of mind the word “reckless” is the most

appropriate.”

36.For our own benefit it is appropriate to

reproduce Section 304 of the IPC, which reads

thus:

“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 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

31

Page 32 Crl.A. @ SLP(Crl.)No.3292/10

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 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.”

37.Critical and microscopic analysis thereof shows

that once knowledge that it is likely to cause

death is established but without any intention

to cause death, then jail sentence may be for a

term which may extend to 10 years or with fine

or with both.

38.Now, we have to consider if it is a fit case

where conviction should be altered to Section

304 Part II of IPC and sentence awarded should

be enhanced.

39.We are of the considered view that looking to

the nature and manner in which accident had

taken place, it can safely be held that he had

no intention to cause death but certainly had

32

Page 33 Crl.A. @ SLP(Crl.)No.3292/10

the knowledge that his act may result in death.

40.Thus, looking to the matter from all angles, we

have no doubt in our mind that knowledge can

still be attributed to accused Sanjeev that his

act might cause such bodily injuries which may,

in ordinary course of nature, be sufficient to

cause death but certainly he did not have any

intention to cause death. He was not driving

the vehicle with that intention. There is

nothing to prove that he knew that a group of

persons was standing on the road he was going

to pass through. If that be so, there cannot be

an intention to cause death or such bodily

injury as is likely to cause death. Thus, in

our opinion, he had committed an offence under

Section 304 Part II IPC. We accordingly hold

so.

41.Now the greater question that arises for

consideration is if sentence deserves to be

suitably enhanced or the same can be maintained

33

Page 34 Crl.A. @ SLP(Crl.)No.3292/10

as awarded by the High Court, the period which

the Respondent has already undergone.

42.To do complete justice between the parties we

have to weigh aggravating and mitigating

circumstances to find out on which side justice

tilts more.

43.In fact, the aggravating and mitigating

circumstances have been mentioned in detail in

the preceding paras. We have given our serious

thought to the whole matter and are of the

considered opinion that mitigating

circumstances as mentioned in para 26

hereinabove are heavier than the aggravating

circumstances. The balance of justice tilts

more in favour of the accused.

44.In the case in hand, no useful purpose is going

to be served by sending the respondent accused

Sanjeev Nanda to jail once again. Even though

in the facts and circumstances of the case,

jail sentence awarded to him may not be just

34

Page 35 Crl.A. @ SLP(Crl.)No.3292/10

and appropriate but as mentioned hereinabove,

the mitigating circumstances tilt heavily in

favour of the accused.

45.In the light of the aforesaid discussion, the

appeal is partly allowed. The judgment and

order of conviction passed by Delhi High Court

is partly set aside and the order of conviction

of Trial Court is restored and upheld.

Accused is held guilty under Section 304 Part

II of the IPC. Looking to the facts and

circumstances of the same, we deem it

appropriate to maintain the sentence awarded by

the High Court, which he has already undergone.

However, we make it clear that this has been

held so, looking to very peculiar facts and

features of this particular case and it may not

be treated as a precedent of general

proposition of law on the point, for other

cases.

46.Appeal stands allowed to the aforesaid extent.

35

Page 36 Crl.A. @ SLP(Crl.)No.3292/10

Accused has already undergone the sentence

awarded to him by the High Court. Thus, he

need not undergo any further sentence.

......................J

[DEEPAK VERMA]

......................J

[K.S. RADHAKRISHNAN]

New Delhi.

August 03, 2012

36

Page 37 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1168 OF 2012

[Arising out of SLP (Crl.) No. 3292 of 2010]

State through Police Station,

Lodhi Colony, New Delhi .. Appellant(s)

Versus

Sanjeev Nanda .. Respondent

J U D G M E N T

K. S. RADHAKRISHNAN, J.

Delay condoned.

Leave granted.

1.I had the benefit and privilege of carefully considering the

judgment delivered by my esteemed brother. However, I find it

difficult to agree with some of the findings and observations

recorded therein, even though I agree with most of the major

conclusions, however, with a caveat. I, therefore, deem it fit and

proper to supplement it with few suggestions and directions.

2.Facts have been meticulously and concisely dealt with by my

learned Brother and I do not want to burden my judgment with

those voluminous facts which find a place in the judgment of the

trial court as well as the High Court.

37

Page 38 3.The controversy in this case had been considerably narrowed

down since learned senior counsel appearing for the accused –

Sanjeev Nanda admitted that it was he, who was driving the BMW

car bearing registration No. M-312 LYP in the early hours of

10.01.1999, which resulted in the death of six persons, leaving

another injured. Admission was made after a prolonged trial,

spanning over a period of nine years, that too after the trial court,

appreciating the oral and documentary evidence adduced by the

prosecution and defence, came to the conclusion that he was guilty

and convicted him for the offence under Section 304(II) of the IPC

and sentenced him to undergo rigorous imprisonment for five years.

4.The accident had occurred in early hours of 10.01.1999 near

the Car Care Centre, Lodhi Road. Charges were framed against the

first accused and others on 08.04.1999. Charges under Sections

338, 304 of the IPC were framed against the first accused – Sanjeev

Nanda and another for causing death of six persons and for

attempting to commit culpable homicide not amounting to murder of

Manoj Malik. Another charge was also framed under Section 201/34

against the first accused and two others for fleeing away from the

spot with the intention to screen themselves from legal punishment.

38

Page 39 5.We are in this case primarily concerned with the charge against

Sanjeev Nanda – the first accused. Prosecution in order to establish

the guilt examined 61 witnesses, of which Sunil Kulkarni was given

up by the prosecution and was examined as a court witness. Upon

completion of the prosecution evidence, accused persons were

questioned and statements of the accused persons were recorded

under Section 313 of the Cr.P.C. On the side of the accused, DW1 to

DW9 were examined. Documentary evidences such as FSL report

exhibited as P16/A etc. were also produced. The trial court vide

judgment dated 02.09.2008, as already stated, found the first

accused guilty under Section 304(II) of the IPC and awarded the

sentence of five years rigorous imprisonment.

6.Aggrieved by the judgment of the trial court, the first accused

filed Criminal Appeal No. 807 of 2008 before the High Court and the

High Court after examining the contentions of the parties converted

the conviction from Section 304(II) to Section 304A of the IPC and

reduced the sentence to two years. The accused had already

undergone the punishment awarded by the High Court and no

appeal was preferred by him against the judgment of the High Court

or the findings recorded by the High Court. The present appeal has

been preferred by the State contending that the High Court has

committed an error in converting the conviction from Section 304(II)

39

Page 40 to Section 304A of the IPC considering the seriousness of charges

proved and the gravity of the offence.

7.Shri Harin P. Raval, Additional Solicitor General appearing for

the State, submitted that in the facts and circumstances of the case,

the High Court was not justified in converting the conviction from

Section 304(II) to 304A of the IPC, raising various grounds.

Learned ASG submitted that the High Court had misdirected itself in

concluding that the facts of the case would not attract 304(II) of the

IPC. Shri Raval submitted that it was the first accused who had

driven the vehicle on a high speed after consuming liquor and that

too without a licence, causing death of six persons and injuring one,

leaving them unattended. Learned ASG further submitted that the

gravity of the offence was of such a nature that it is touching the

boundaries of Section 300(4) of the IPC. Further, it was also pointed

out by Shri Raval that the knowledge of the second degree

comprehended from Part-III of Section 299 of the IPC, where death

is caused by the offender by an act which offender knows is likely to

cause death, would be attracted. Reference was made to the

judgments of this Court in State of Gujarat v. Haidarali Kalubhai

(1976) 1 SCC 889, Kulwant Rai v. State of Punjab (1981) 4 SCC

245, State of Maharashtra v. Salman Salim Khan & Another

40

Page 41 (2004) 1 SCC 525 and Alister Anthony Pareira v. State of

Maharashtra (2012) 2 SCC 648. Learned counsel referred to the

oral and documentary evidence, the scene of crime as narrated by

Kailash Chand, S.I. in Rukka, as well as site plan and submitted that

the scene of occurrence, which was horrifying, clearly indicates

beyond doubt, that the accused had knowledge that the persons

who were hit by the car might die but left the scene of occurrence

without caring for human lives.

8.Shri Raval also extensively referred to the oral and

documentary evidence adduced in this case and submitted that the

trial court as well as the High Court had concurred in finding that it

was the accused who had committed the offence over and above

admission of the first accused. Prosecution case, it was pointed out,

mainly rested on the oral evidence of PW1 – Hari Shankar, an

employee of petrol pump, PW2- Manoj Malik, injured and an

employee of a hotel and PW3 – Sunil Kulkarni, the court witness

though, given up by the prosecution. Further, Shri Raval submitted

that the evidence of all these witnesses, though turned hostile, have

to be appreciated in the light of the peculiar facts and circumstances

of this case and also taking note of the admission of the first

accused that it was he who had driven the vehicle on the fateful day.

41

Page 42 Learned Counsel also submitted that the court should appreciate the

circumstance under which most of the prosecution witnesses turned

hostile and the incidents which led to the judgment of this Court in

R.K. Anand v. Registrar, Delhi High Court [(2009) 8 SCC 106]

cannot be lost sight of, which revealed the unholy alliance, then

defence counsel had with the special public prosecutor for

subverting the criminal trial of this case. PW2, who got injured in

the accident, turned hostile so as to subvert trial. Evidently, all

these were done at the behest of the accused though the

prosecution was successful in bringing home the guilt of the

accused, as found by the courts below.

9.Shri Raval submitted that since learned counsel for the accused

had admitted that it was the first accused who was driving the

vehicle on the fateful day resulting in the death of six persons, the

only question that remains to be considered is whether the accused

deserves proper punishment for the offence committed under

Section 304(II) of the IPC or whether the conviction or sentence

awarded by the High Court under Section 304A of the IPC would be

inadequate punishment, so far as the facts and circumstances of this

case are concerned. Shri Raval submitted that the accused deserves

harsher punishment, as rightly held by the trial court considering the

42

Page 43 fact that he was driving the vehicle in an inebriated state, without

licence and that he had left the scene of occurrence without

extending any helping hand to the victims either by taking them to

the hospital or reporting the accident to the police at the earliest

point of time. Shri Raval placed considerable reliance on the

evidence of PW-16 and the FSL report proved on record as Exhibit

16/A and pointed out that the report indicated the presence of

0.115% alcohol in the blood sample of the accused. Shri Raval

submitted that the High Court had correctly understood the scope

and ambit of Section 185 of the Motor Vehicles Act r/w Section 203

of the Act and came to a correct conclusion that the presence of

0.115% alcohol was much above the limit of 30mg prescribed under

the Motor Vehicles Act and it can definitely affect the ability to drive

the vehicle in a normal manner.

10.Shri Raval also submitted that the fog and lack of visibility on

the site projected by the counsel for the accused was rightly

rejected by the High Court. Learned counsel pointed out that this

argument was neither raised before the trial court nor in the grounds

of appeal taken before the High Court. Further, PW 15 – Dr. S.C.

Gupta’s report had not stated the presence of fog on the site of the

accident. On the other hand, PW15 stated that the sky was clear

43

Page 44 and the mention of mist in the report was of no consequence. Shri

Raval submitted that the car was coming in a high speed and

considering the fact that there was clear visibility, the only

conclusion possible was that the accused was in a drunken state and

nobody knew whether he had driven the car 16 kms prior to the

accident. Shri Raval, therefore submitted that the High Court was

not justified in holding that the offence will attract Section 304A of

the IPC and not 304 (II) of the IPC.

11.Shri Ram Jethmalani, learned senior counsel appearing for the

respondent – accused, submitted that the accused had already

undergone the sentence awarded by the High Court and since no

sufficient grounds have been made by the prosecution to upset the

conclusion reached by the High Court that in the facts and

circumstances of the case, the offence will fall only under Section

304A of the IPC. Learned senior counsel submitted that the accused

had admitted the factum of the accident that, he was driving the

vehicle on the morning hours of 10.01.1999 so as to give a quietus

to the entire controversy and to purchase peace for the accused,

who had undergone agony of the criminal trial for over a decade.

12.Learned senior counsel submitted, the factum of admission

made by the accused in this regard cannot be put against him or

44

Page 45 prejudice the court in appreciating various contentions raised in

defending his case. Shri Jethmalani, learned senior counsel,

submitted, though the accident had occurred in the morning hours

of 10.01.1999, the trial was prolonged due to various reasons –

mainly due to the lethargic attitude of the prosecution and also due

to the delay in the court proceedings which cannot be put against

the accused. Further, he had already undergone the sentence of two

years awarded by the High Court and subsequently he got married

and has also been blessed with a daughter and it will be too harsh to

punish him with imprisonment for a further term.

13.Learned senior counsel also pointed out his behavior and

conduct in jail was also well-acknowledged and he has also not been

involved in any criminal offence subsequently. Further, the families

of the victims were adequately compensated in monetary terms and

he was only 21 years on the date of the incident. These factors

according to the learned senior counsel should weigh with the court

and the appeal be not entertained. Learned senior counsel also

attacked the various findings recorded by the High Court and

pointed out that since the accused had already undergone the

punishment, no appeal was preferred in challenging those findings

and in case where the State is seeking enhancement of the

45

Page 46 punishment, the accused can always raise his defence against

various grounds raised by the prosecution in the appeal, since the

appeal is only the continuation of the trial.

14.Learned senior counsel pointed various instances of judicial

unfairness meted out to the respondent. Reference was made to the

evidence of Sunil Kulkarni - the court witness. Learned senior

counsel pointed out free and fair trial is sine qua non of Article 21 of

the Constitution of India, which was denied to the accused in the

instant case. In support of his contention regarding unfair trial,

reference was made to the judgment in Jamaica (Constitutional)

Order as referred in Herbert Bell v. Director of Public

Prosecutions & Anr. [(1985) A.C. 937], Datar Singh v. State of

Punjab [(1975) 4 SCC 272], Birdhichand Sarda v. State of

Maharashtra [(1984) 4 SCC 116] and Chandran @ Surendran

and Anr. v. State of Kerala [1991 Supp(1) SCC 39]. Learned

senior counsel also pointed out that the judgment in R.K. Anand

(supra) had also influenced the judicial mind, especially that of the

trial judge and that the High Court has rightly converted the

conviction from Section 304(II) of the IPC to Section 304A of the

IPC and that the accused had undergone the punishment.

15.Learned senior counsel also submitted that the prosecution had

46

Page 47 committed a grave error in suppressing the PCR messages which

were of great significance for the accused to prove his defence.

PW2, one of the victims of the accident who was in the Jeep, also

disclosed various facts which were suppressed by the prosecution.

Learned senior counsel also pointed out Kulkarni was a totally

unreliable witness and the statements made by him were given

importance by the trial court as well as the High Court in reaching

various conclusions against the accused.

16.Shri Jethmalani submitted there is no evidence on record to

prove that the accused was intoxicated in the sense in which

intoxication was understood under Section 85 of the IPC nor in the

sense of his ability to control the motor vehicle being substantially

impaired as a result of consuming alcohol as laid down by Section

185(1) of the M.V. Act. Further, it was also pointed that the test

statutorily recognized for drunken driving is the breath analyzer test

for drunken driving and the accused was not subjected to that test.

Learned counsel has submitted that when a statute prescribes a

particular method the prosecution has to follow that method and not

any other method. Reliance was placed on the judgments of the

House of Lords in Rowlands v. Hamilton [(1971) 1 All E.R. 1089],

Gumbley v. Cunningham [(1989) 1 All E.R. 5], and judgments of

47

Page 48 the Privy Council in Nazir Ahmad v. Emperor [AIR 1936 PC 253],

State of Uttar Pradesh v. Singhara Singh and Ors. [AIR 1964

SC 358].

17.Learned senior counsel also submitted that no reliance could

be placed on the evidence tendered by PW-16 – Dr. Madhulika

Sharma, Senior Scientific Officer as well as the evidence of PW10 –

Dr. T. Milo and submitted that there is nothing to show the vehicle

was driven in a reckless or negligent manner so as to infer that the

accused was drunk. On the other hand, learned senior counsel

pointed out that the accused could not have avoided the accident

since policemen and others were standing on the middle of the road

on a foggy day when the visibility was poor. Further, it was pointed

out that the accused had driven car about 16 kms before the

accident without any untoward incident, which would indicate that,

his condition was stable and he had not consumed liquor beyond the

prescribed limit.

18.Learned senior counsel also submitted that the evidence of PW

15 - Dr. S.C. Gupta was also not properly appreciated by the courts

below, so also the evidence tendered on the presence of fog. The

presence of fog, according to the learned senior counsel, clearly

restricted the visibility and the entire fault cannot be put on the

48

Page 49 accused. Reference was also made to the evidence of PW2 on the

presence of fog on the morning of 10.01.1999. On the plea of

excessive speed, learned senior counsel submitted, assuming it was

so, that itself would not establish that the accused was negligent or

rash, at the most, there was gross negligence. Reference was made

to the judgment of this Court in State of Karnataka v. Satish

[(1998) 8 SCC 493].

19.Learned senior counsel submitted, in the facts and

circumstances of the case, no knowledge could be attributed to the

accused since there was nothing to show that the accused had the

intention to commit the offence, nor any knowledge can be

attributed to him and even if it is assumed that he was negligent or

rash, only section 304A of the IPC would apply and not 304(II) of

the IPC. The judgment of this Court in Alister Anthony Pareira

(supra), according to learned senior counsel, requires

reconsideration. Learned senior counsel also submitted that the

judgment of this Court in Haidarali Kalubhai (supra) would not

apply to the facts of this case.

20.We may at the outset point out that both the trial court and

High Court, on appreciation of oral and documentary evidence, came

to the clear finding that it was the accused who had driven the BMW

49

Page 50 car at the early hours of 10.01.1999 – the day on which six human

lives were lost due to the rash and negligent act of the first accused,

leaving another person injured. The facts and circumstances of the

case according to the trial court, as already indicated, would attract

conviction under Section 304(II) of the IPC but the High Court

converted the same to Section 304A of the IPC, the correctness of

which is the main issue that falls for consideration. We have to first

examine whether any prejudice had been caused to the first accused

due to the alleged unfair and delayed trial as contended and who

was primarily instrumental for the delay in completion of the trial

and also whether any injustice had been caused to the accused due

to the alleged judicial unfairness.

21.The incident had occurred on 10.01.1999 and charge-sheet

against the accused was filed on 08.04.1999. Sixty one witnesses

were examined on the side of the prosecution and nine witnesses

were examined on the side of the defence and a large number of

documents were produced including expert evidence before the trial

court and the court finally rendered its judgment on 02.09.2008.

When the trial was on, the part played by Sunil Kulkarni, one of the

eye witnesses, who later turned hostile and the unholy alliance he

had with the defence counsel etc. were also adversely commented

50

Page 51 upon by this court in R.K. Anand case (supra). The operative

portion of which reads as follows:

“Before laying down the records of the case we must also

advert to another issue of great importance that causes

grave concern to this Court. At the root of this odious

affair is the way the BMW trial was allowed to be

constantly interfered with till it almost became

directionless.”

Further, the court held as follows:

“Every trial that fails due to external interference is a

tragedy for the victim(s) of the crime. More importantly,

every frustrated trial defies and mocks the society based

on the rule of law. Every subverted trial leaves a scar on

the criminal justice system. Repeated scars make the

system unrecognisable and it then loses the trust and

confidence of the people.”

22.We do not want to delve much into the background facts in

R.K. Anand (supra) any further, but only to put a question, but for

the accused for whose benefit the entire drama was played by

Anand and Sunil Kulkarni. We have referred to the above judgment

since an argument was raised by Shri Ram Jethmalani on the right

of the accused for speedy trial and on judicial unfairness. Had the

first accused been honest enough and wanted early disposal of the

trial, he would have come out with the truth at the earliest

opportunity. Only after a protracted trial that too after examining

sixty one witnesses and producing and proving a host of documents

and after having been found guilty and convicted under Section

51

Page 52 304(II) of the IPC and sentenced to five years rigorous

imprisonment, wisdom dawned on the accused, that too, at the

appellate stage. Learned senior counsel for the accused before the

High Court then submitted that to narrow down the controversy, the

accused is admitting the factum of the accident and that he was

driving the BMW on the fateful morning of 10.01.1999. The High

Court recorded the same as follows:

“As already noticed, to narrow down the controversy,

Mr. Ram Jethmalani very fairly conceded at the

threshold of the arguments that he would proceed in

the matter by admitting the factum of the accident and

the appellant being on the driver seat on the fateful

morning of 10

th

January, 1999, when the horrifying

incident had taken place. This admission on the part

of the counsel for the appellant would mean that the

appellant gives up his right to challenge the findings of

the Lower Court so far as the factum of accident by the

appellant while driving BMW car bearing registration

No. M312LYP resulted in death of six persons and

injury to one person on the morning of 10

th

January,

1999 near Car Care Centre petrol pump at Lodhi Road

is concerned, despite the fact that several contentions

have been raised by the appellant denying his

involvement in the accident in the grounds of appeal.”

23.Shri Ram Jethmalani, as already pointed out, submitted that

the first accused was seriously prejudiced due to the unfair and

delayed trial, which was also commented upon by the High Court

which reads as follows:

“In any event of the matter, the appellant himself must

share the burden of causing delay in the matter as

with a view to hoodwink the prosecution and to escape

52

Page 53 from the clutches of law, he denied the factum of

accident. It is only at the stage of final arguments

before the trial court and in appeal, the appellant

turned hostile to accept occurrence of the said

horrifying accident while driving BMW car bearing

registration No. M-312-LYP. Certainly, a lot of time

could have been saved had the accused been honest

from day one and admitted his guilt.”

24.Accused, though did not file any appeal against those findings,

we heard his senior counsel at length on all points and we do not

find any illegality in the reasoning of the trial court as well as the

High Court which we fully concur with. Learned senior counsel,

however, after admitting the factum of the accident and that it was

the accused, who was driving the car on the fateful day, causing

death of persons, pointed out various factors which according to the

counsel had contributed to the accident and hence no further

enhancement of sentence is warranted.

Drunken driving

25.Learned senior counsel, appearing for the accused, as already

pointed, has stated that there was nothing on record to prove that

the first accused was intoxicated in the sense in which it is

understood under Section 85 of the IPC nor in the sense that his

ability to control the motor vehicle had been substantially impaired

as a result of consumption of alcohol as laid down by Section 185 of

the M.V. Act. Further, it was also stated that the first accused had

53

Page 54 driven the vehicle about 16 kms prior to the accident. If he was in a

drunken state, he could not have driven the car for that much of

distance. Further, it was also pointed out that the procedure laid

down under Section 185 of the M.V. Act was not followed.

Consequently, learned senior counsel pointed out that the courts

have committed an error in holding that he was under the influence

of liquor when the accident had happened. In our view, both the

courts below have rightly rejected those contentions raised by

learned senior counsel. The scope of Section 185 is not what the

senior counsel submits.

Section 185 of the M.V. Act is extracted herein below:

“Section 185 - Driving by a drunken person or by a

person under the influence of drugs

Whoever, while Driving, or attempting to drive, a

motor vehicle,-

(a) has, in his blood, alcohol exceeding 30 mg. per

100 ml. of blood detected in a test by a breath

analyser, or

(b) is under this influence of a drug to such an extent

as to be incapable of exercising proper control over

the vehicle,

shall be punishable for the first offence with

imprisonment for a term which may extend to six

months, or with fine which may extend to two

thousand rupees, or with both; and for a second or

subsequent offence, if committed within three years

of the commission of the previous similar offence,

54

Page 55 with imprisonment for a term which may extend to

two years, or with fine which may extend to three

thousand rupees, or with both.

Explanation. -For the purposes of this section, the

drug or drugs specified by the Central Government in

this behalf, by notification in the Official Gazette, shall

be deemed to render a person incapable of exercising

proper control over a motor vehicle.”

26.Section 203 of the MV Act deals with Breath Tests. The

relevant portion for our purpose is given below:

“203. Breath tests.- (1) A police officer in

uniform or an officer of the Motor Vehicles Department,

as may be authorized in this behalf by that Department,

may require any person driving or attempting to drive a

motor vehicle in a public place to provide one or more

specimens of breath for breath test there or nearby, if

such police officer or officer has any reasonable cause to

suspect him of having committed an offence under

section 185:

xxx xxx xxx

xxx xxx xxx

(4) If a person, required by a police officer under

sub-section (1) or sub-section (2) to provide a specimen

of breath for a breath test, refuses or fails to do so and

the police officer has reasonable cause to suspect him of

having alcohol in his blood, the police officer may arrest

him without warrant except while he is at a hospital as an

indoor patient.

xxx xxx xxx

xxx xxx xxx”

Section 205 deals with presumption of unfitness to drive which reads

as follows:

“205. Presumption of unfitness to drive.- In any

proceeding for an offence punishable under section 185 if

55

Page 56 it is proved that the accused when requested by a police

officer at any time so to do, had refused, omitted or

failed to consent to the taking of or providing a specimen

of his breath for a breath test or a specimen of his blood

for a laboratory test, his refusal, omission or failure may,

unless reasonable cause therefor is shown, be presumed

to be a circumstance supporting any evidence given on

behalf of the prosecution, or rebutting any evidence given

on behalf of the defence, with respect to his condition at

that time.”

The accused, in this case, escaped from the scene of occurrence,

therefore, he could not be subjected to Breath Analyzer Test

instantaneously, or take or provide specimen of his breath for a

breath test or a specimen of his blood for a laboratory test.

Cumulative effect of the provisions, referred to the above, would

indicate that the Breath Analyzer Test has a different purpose and

object. The language of the above sections would indicate that the

said test is required to be carried out only when the person is

driving or attempting to drive the vehicle. The expressions “while

driving” and “attempting to drive” in the above sections have a

meaning “in praesenti”. In such situations, the presence of alcohol

in the blood has to be determined instantly so that the offender may

be prosecuted for drunken driving. A Breath Analyzer Test is applied

in such situations so that the alcohol content in the blood can be

detected. The breath analyzer test could not have been applied in

the case on hand since the accused had escaped from the scene of

the accident and there was no question of subjecting him to a breath

56

Page 57 analyzer test instantaneously. All the same, the first accused was

taken to AIIMS hospital at 12.29 PM on 10.01.1999 when his blood

sample was taken by Dr. Madulika Sharma, Senior Scientific Officer

(PW16). While testing the alcohol content in the blood, she noticed

the presence of 0.115% weight/volume ethyl alcohol. The report

exhibited as PW16/A was duly proved by the Doctor. Over and

above in her cross-examination, she had explained that 0.115%

would be equivalent to 115 mg per 100 ml of blood and deposed

that as per traffic rules, if the person is under the influence of liquor

and alcohol content in blood exceeds 30 mg per 100 ml of blood, the

person is said to have committed the offence of drunken driving.

27.Further, the accused was also examined on the morning of

10.01.1999 by Dr. T. Milo – PW10, Senior Resident, Department of

Forensic Medicine, AIIMS, New Delhi and reported as follows:

“On examination, he was conscious, oriented, alert

and co-operative. Eyes were congested, pupils were

bilaterally dilated. The speech was coherent and gait

unsteady. Smell of alcohol was present.”

28.Evidence of the experts clearly indicates the presence of

alcohol in blood of the accused beyond the permissible limit, that

was the finding recorded by the Courts below. Judgments referred

to by the counsel that if a particular procedure has been prescribed

under Sections 185 and 203, then that procedure has to be followed,

57

Page 58 has no application to the facts of this case. Judgments rendered by

the House of Lords were related to the provision of Road Safety Act,

1967, Road Traffic Act, 1972 etc. in U.K. and are not applicable to

the facts of this case.

29.We are in this case not merely dealing with a traffic violation or

a minor accident, but an accident where six human beings were

killed. we find no relevance in the argument that the accused was

coming from a distance of 16 kms. before the accident, causing no

untoward incident and hence it is to be presumed that he was in a

normal state of mind. First of all, that statement is not supported

by evidence apart from the assertion of the accused. Assuming so,

it is a weak defence, once it is proved that the person had consumed

liquor beyond the prescribed limit on scientific evidence. This court

in Kurban Hussain v. State [AIR 1965 SC 1616] approved the plea

that simply because of the fact that no untoward incident had taken

place prior to the occurrence of the accident, one cannot infer that

the accused was sober and not in a drunken state. In the instant

case, the presence of alcohol content was much more (i.e. 0.115%)

than the permissible limit and that the accused was in an inebriated

state at the time of accident due to the influence of liquor and in the

accident, six human lives were lost.

58

Page 59 30.Drunken driving has become a menace to our society.

Everyday drunken driving results in accidents and several human

lives are lost, pedestrians in many of our cities are not safe. Late

night parties among urban elite have now become a way of life

followed by drunken driving. Alcohol consumption impairs

consciousness and vision and it becomes impossible to judge

accurately how far away the objects are. When depth perception

deteriorates, eye muscles lose their precision causing inability to

focus on the objects. Further, in more unfavourable conditions like

fog, mist, rain etc., whether it is night or day, it can reduce the

visibility of an object to the point of being below the limit of

discernibility. In short, alcohol leads to loss of coordination, poor

judgment, slowing down of reflexes and distortion of vision.

31.Punishment meted out to a drunken driver, is at least a

deterrent for other such persons getting away with minor

punishment and fine. Such incidents are bound to increase with no

safety for pedestrians on the roads. The contention raised by

learned senior counsel that the accused was not under the influence

of liquor or beyond the limit prescribed under the M.V. Act and he

was in his senses and the victims were at fault being on the middle

of the road, is without any substance and only to be rejected.

59

Page 60 Fog, visibility and speed

32.Learned senior counsel, as already indicated, pointed out that

the morning of 10.01.1999 was a foggy one and that disrupted the

visibility. Reference was made to the report exhibited as PW15/B,

that of Dr. S.C. Gupta Director of Meteorological Department.

Learned senior counsel pointed out that the presence of fog is a fact

supported by the said report. Further, it was also pointed out that

PW2 – Manoj Malik had also suggested the presence of fog and the

absence of street light and all those factors contributed to the

accident. It was pointed out by the High Court that even, during the

course of the arguments, there was no mention of the plea of fog

nor was the ground taken in the appeal memorandum. Further, it

was also pointed out that such an argument was never raised before

the trial court as well. No case was built up by the defence on the

plea of fog and in our view there is no foundation for such an

argument.

33.Even going by the evidence of PW15 – Dr. S.C. Gupta and also

the report exhibited as PW 15/B, there is nothing to show the

presence of fog on the spot of the accident. PW15 Dr. Gupta’s

60

Page 61 report stated the sky was mainly clear and there was no mention of

the presence of mist or fog at the spot in the report. The visibility of

100 m of clear sky was reported by PW 15 in exhibit 15/B which

would demolish the theory of fog at the spot of the accident and

poor visibility. In our view, there is another fallacy in that

argument. Assuming that there was presence of fog, it was a duty

of the accused either to stop the vehicle if the visibility was poor or

he should have been more cautious and driven the vehicle carefully

in a lesser speed so that it would not have blurred his vision. This

never happened since the accused was in an inebriated state and the

fact that six persons died practically on the spot would indicate that

the vehicle was driven in a rash and negligent manner at an

excessive speed. The plea of fog, even if its presence had been

established, would only weaken the defence case and the trial court

and the High Court had rightly rejected that plea.

Driving without licence

34.Learned senior counsel, appearing for the accused, submitted

that the first accused knows driving, though he does not have a

licence duly issued by a licencing authority under the M.V. Act, 1988.

Learned senior counsel submitted that the accused had driven the

vehicle in America and European countries and possesses a valid

61

Page 62 driving licence issued by the licencing authority of a State in the

United States at the relevant point of time. Learned senior counsel,

therefore, pointed out that the mere fact that he was not holding a

driving licence would not mean that he does not know driving.

35.Learned senior counsel also submitted that there is no

presumption in law that a person who has no licence does not know

driving. Further, it was also pointed out that driving without a

licence is an offence under M.V. Act and not under the Penal Code,

unless and until it is proved that a person was driving a vehicle in a

rash and negligent manner so as to attract Section 304A of the IPC.

Admittedly, the first accused was not having an Indian licence at the

time of accident though he had produced a licence issued by the

Licencing Authority from a State in the United States. A person who

is conversant in driving a motor vehicle in the United States and

European countries may not be familiar with the road conditions in

India. In India, the driver is always on the defensive due to various

reasons. Pedestrians in India seldom use footpaths nor respect

Zebra lines or traffic lights, two wheelers, auto-rickshaws, cyclists

and street-vendors are common sights on Indian roads. A driver in

Indian roads should expect the unexpected always, therefore, the

plea that the accused has an American driving licence is not an

62

Page 63 answer for driving in Indian roads unless it is recognized in India or

that person is having a driving licence issued by the Licensing

Authority in India. We have to necessarily draw an inference that

the accused was not conversant in driving a vehicle on the Indian

roads in the absence of an Indian licence at the time of the accident.

Therefore, the judgment of this Court in Suleman Rahiman Mulani

and Anr. V. State of Maharashtra [AIR 1968 SC 829] that there is

no presumption of law that a person who possesses only a learning

licence or possesses no licence at all, does not know driving is

inapplicable to the facts of this case. In any view, in the instant

case, we have already found that the accused was in an inebriated

state, therefore, the question whether he knew driving is not of

much consequence.

Duty of Driver, Passengers and Bystanders

36.We have found on facts that the accused had never extended

any helping hand to the victims lying on the road and fled from the

scene. Section 134 of M.V. Act, 1988 casts a duty on a driver to

take reasonable steps to secure medical attention for the injured

person. Section 134 of M.V. Act, 1988 reads as follows:

“134. Duty of driver in case of accident and

injury to a person. – When any person is

injured or any property of a third party is

63

Page 64 damaged, as a result of an accident in which a

motor vehicle is involved, the driver of the

vehicle or other person in charge of the vehicle

shall –

(a) unless it is not practicable to do so on account of

mob fury or any other reason beyond his control,

take all reasonable steps to secure medical

attention for the injured person, by conveying

him to the nearest medical practitioner or

hospital, and it shall be the duty of every registered

medical practitioner or the doctor on the duty in the

hospital immediately to attend to the injured

person and render medical aid or treatment

without waiting for any procedural formalities,

unless the injured person or his guardian, in

case he is a minor, desired otherwise;

(b) give on demand by a police officer any

information required by him or, if no police

officer is present, report the circumstances of the

occurrence, including the circumstances, if any, or

not taking reasonable steps to secure medical

attention as required under clause (a), at the

nearest police station as soon as possible, and in

any case within twenty-four hours of the

occurrence;

(c) give the following information in writing to

the insurer, who has issued the certificates of

insurance, about the occurrence of the accident,

namely :-

(i) insurance policy number and period of its

validity;

(ii) date, time and place of accident;

(iii.) particulars of the persons injured or killed in

the accident;

(iv.) name of the driver and the particulars of his

driving licence.

Explanation. – For the purposes of this section,

the expression “driver” includes the owner of the

vehicle.”

64

Page 65 Section 187 of the M.V. Act, 1988 provides for punishment relating

to accident, which reads as follows:

“187. Punishment for offence relating to

accident. – Whoever fails to comply with the

provisions of clause (c) of sub-section (1) of

section 132 or of section 133 or section 134 shall

be punishable with imprisonment for a term which

may extend to three months, or with fine which

may extend to five hundred rupees, or with both

or, if having been previously convicted of an

offence under this section, he is again convicted of

an offence under this section, with imprisonment

for a term which may extend to six months, or

with fine which may extend to one thousand

rupees, or with both.”

Of course, no proceedings were instituted against the accused in the

case on hand invoking the above mentioned provisions, however,

the unfortunate accident in which six persons were killed at the

hands of the accused, prompted us to express our deep concern and

anguish on the belief that, at least, this incident would be an eye-

opener and also food for thought as to what we should do in future

when such situations arise. This Court in Pt. Parmanand Katara v.

Union of India (UOI) and Ors. [(1989) 4 SCC 286] pointed out

that it is the duty of every citizen to help a motor accident victim,

more so when one is the cause of the accident, or is involved in that

particular accident. Situations may be there, in a highly charged

65

Page 66 atmosphere or due to mob fury, the driver may flee from the place,

if there is a real danger to his life, but he cannot shirk his

responsibility of informing the police or other authorized persons or

good samaritans forthwith, so that human lives could be saved.

Failure to do so, may lead to serious consequences, as we see in the

instant case. Passengers who are in the vehicle which met with an

accident, have also a duty to arrange proper medical attention for

the victims. Further they have equal responsibility to inform the

police about the factum of the accident, in case of failure to do so

they are aiding the crime and screening the offender from legal

punishment.

37.No legal obligation as such is cast on a bystander either under

the Motor Vehicle Act or any other legislation in India. But greater

responsibility is cast on them, because they are people at the scene

of the occurrence, and immediate and prompt medical attention and

care may help the victims and their dear ones from unexpected

catastrophe. Private hospitals and government hospitals, especially

situated near the Highway, where traffic is high, should be equipped

with all facilities to meet with such emergency situations.

Ambulance with all medical facilities including doctors and

supporting staff should be ready, so that, in case of emergency,

66

Page 67 prompt and immediate medical attention could be given. In fact,

this Court in Paschim Banga Khet Mazdoor Samiti and Ors. V.

State of West Bengal and Ors. (1996) 4 SCC 37, after referring to

the report of Justice Lilamoy Ghose, a retired Judge of the Calcutta

High Court, gave various directions to the Union of India and other

States to ensure immediate medical attention in such situations and

to provide immediate treatment to save human lives. Law

Commission in its 201

st

report dated 31.8.2006 had also made

various recommendations, but effective and proper steps are yet to

be taken by Union of India and also many State Governments. We

call for the immediate attention of the Union of India and other

State Governments, if they have not already implemented those

directions, which they may do at the earliest.

38. Seldom, we find that the passing vehicles stop to give a

helping hand to take the injured persons to the nearby hospital

without waiting for the ambulance to come. Proper attention by the

passing vehicles will also be of a great help and can save human

lives. Many a times, bystanders keep away from the scene, perhaps

not to get themselves involved in any legal or court proceedings.

Good Samaritans who come forward to help must be treated with

respect and be assured that they will have to face no hassle and will

67

Page 68 be properly rewarded. We, therefore, direct the Union of India and

State Governments to frame proper rules and regulations and

conduct awareness programmes so that the situation like this could,

to a large extent, be properly attended to and, in that process,

human lives could be saved.

Hostile Witnesses

39.We notice, in the instant case, the key prosecution witnesses

PW1 – Harishankar, PW2 – Manoj Malik, PW3 – Sunil Kulkarni turned

hostile. Even though the above mentioned witnesses turned hostile

and Sunil Kulkarni was later examined as court witness, when we

read their evidence with the evidence of others as disclosed and

expert evidence, the guilt of the accused had been clearly

established. In R.K. Anand (supra), the unholy alliance of Sunil

Kulkarni with the defence counsel had been adversely commented

upon and this Court also noticed that the damage they had tried to

cause was far more serious than any other prosecution witness.

40.Witness turning hostile is a major disturbing factor faced by

the criminal courts in India. Reasons are many for the witnesses

turning hostile, but of late, we see, especially in high profile cases,

there is a regularity in the witnesses turning hostile, either due to

68

Page 69 monetary consideration or by other tempting offers which

undermine the entire criminal justice system and people carry the

impression that the mighty and powerful can always get away from

the clutches of law thereby, eroding people’s faith in the system.

This court in State of U.P. v. Ramesh Mishra and Anr. [AIR 1996

SC 2766] held that it is equally settled law that the evidence of

hostile witness could not be totally rejected, if spoken in favour of

the prosecution or the accused, but it can be subjected to closest

scrutiny and that portion of the evidence which is consistent with the

case of the prosecution or defence may be accepted. In K.

Anbazhagan v. Superintendent of Police and Anr. [AIR 2004 SC

524], this Court held that if a court finds that in the process the

credit of the witness has not been completely shaken, he may after

reading and considering the evidence of the witness as a whole with

due caution, accept, in the light of the evidence on the record that

part of his testimony which it finds to be creditworthy and act upon

it. This is exactly what was done in the instant case by both the

trial court and the High Court and they found the accused guilty.

41.We cannot, however, close our eyes to the disturbing fact in

the instant case where even the injured witness, who was present

on the spot, turned hostile. This Court in Sidhartha Vashisht @

69

Page 70 Manu Sharma v. State (NCT o Delhi) [(2010) 6 SCC 1] and in

Zahira Habibullah Shaikh v. State of Gujarat [AIR 2006 SC

1367] had highlighted the glaring defects in the system like non-

recording of the statements correctly by the police and the retraction

of the statements by the prosecution witness due to intimidation,

inducement and other methods of manipulation. Courts, however,

cannot shut their eyes to the reality. If a witness becomes hostile to

subvert the judicial process, the Courts shall not stand as a mute

spectator and every effort should be made to bring home the truth.

Criminal judicial system cannot be overturned by those gullible

witnesses who act under pressure, inducement or intimidation.

Further, Section 193 of the IPC imposes punishment for giving false

evidence but is seldom invoked.

Section 304(II) or Section 304A of the IPC

42.We may in the above background examine whether the offence

falls under Section 304(II) of the IPC or Section 304A of the IPC

from the facts unfolded in this case. Shri Raval, appearing for the

State, as already indicated, argued that the facts of this case lead to

the irresistible conclusion that it would fall under Section 304(II) of

the IPC. Learned counsel pointed out that the accused after having

noticed that the speeding car had hit several persons, left the spot

70

Page 71 without giving any medical aid or help knowing fully well that his act

was likely to cause death. Learned counsel pointed out that in any

view, it would at least fall under Section 304(II) of the IPC.

43.Shri Ram Jethmalani, on the other hand, submitted that

Section 304(II), will never apply in a case of this nature, especially

in the absence of any premeditation. Learned senior counsel

submitted that the accused entertained no knowledge that his action

was likely to cause death assuming he was rash and negligent in

driving the car. Learned senior counsel pointed out that the offence

of culpable homicide presupposes an intention or knowledge and the

intention must be directed either deliberately to put an end to

human life or to some act which to the knowledge of the accused is

likely to eventuate in putting an end to human life. Learned senior

counsel submitted that the accused had no such knowledge either

before or immediately after the accident.

44.First we will examine the scope of section 304A of the IPC

which reads as follows:

“304A. Causing death by negligence.-

Whoever causes the death of any person by doing any

rash or negligent act not amounting to culpable

homicide, shall be punished with imprisonment of

either description for a term which may extend to two

71

Page 72 years, or with fine, or with both.”

On reading the above mentioned provision, the following

requirements must be satisfied before applying this section:

(i)Death must have been caused by the accused;

(ii)Death caused by rash or negligent act;

(iii)Rash and negligent act must not amount to culpable

homicide.

Section 304A 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 not amounting to murder under Section 299 or

murder under Section 300. Section 304A excludes all the

ingredients of Section 299 or Section 300.

45.The above mentioned section came up for consideration in

Haidarali Kalubhai (supra) wherein this Court held as follows:

“Section 304A 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 u/s 299 IPC or

murder u/s 300 IPC. If a person willfully drives a motor

vehicle in the midst of a crowd and thereby causes

death to some persons, it will not be a cause of mere

rash and negligent driving and the act will amount to

culpable homicide. Each case will, therefore, depend

upon the particular facts established against the

accused.”

Before elaborating and examining the above principle laid down by

72

Page 73 this court, we will refer to sections 299, 300, 304A of the IPC.

Section 299

A person commits culpable homicide if the act by

which the death is caused is done

********

(c) with the knowledge that he is likely to cause death.

Section 300

Except in the cases hereinafter excepted, culpable

homicide is murder, if the act by which the death is

caused is done

********

(4) with the knowledge that it is so imminently dan-

gerous that it must, in all probability, cause death or

such bodily injury as is likely to cause death, and com-

mits such act without any excuse for incurring the risk

of causing death or such injury as aforesaid.

“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 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 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.”

46.Section 299 of the IPC defines culpable homicide as an act of

causing death (i) with the intention of causing death; (ii) with the

intention of causing some bodily injury as is likely to cause death;

and (iii) with the knowledge that such act is likely to cause death.

73

Page 74 The first and second clauses of the section refer to intention apart

from knowledge and the third clause refers to knowledge apart from

intention. “Intention” and “knowledge” postulate the existence of

positive mental attitude. The expression ‘knowledge’ referred to in

section 299 and section 300 is the personal knowledge of the person

who does the act. To make out an offence punishable under Section

304(II) of the IPC, the prosecution has to prove the death of the

person in question and such death was caused by the act of the

accused and that he knew such act of his is likely to cause death.

47.Section 304A, as already indicated, 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 not amounting to

murder under Section 299 or murder under Section 300. The scope

of the above mentioned provisions came up for consideration before

this court in the judgment of Naresh Giri v. State of M.P. [(2008)

1 SCC 791]; wherein this court held as follows:

“Section 304A IPC applies to cases where there is no

intention to cause death and no knowledge that the act

done in all probability will cause death. The provision is

directed at offences outside the range of Sections 299

and 300 IPC. Section 304A 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 elements under Section 304A.”

74

Page 75 48.In a recent judgment, in Alister Anthony Pareira (supra),

this Court after surveying a large number of judgments on the scope

of Sections 304A and 304(II) of the IPC, came to the conclusion that

in a case of drunken driving resulting in the death of seven persons

and causing injury to eight persons, the scope of Sections 299, 300

and 304(I) and (II) of the IPC stated to be as follows:

“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 such act is likely to

cause death, Section 304 Part II Indian Penal Code

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 Indian Penal Code.”

On facts, the court concluded as follows:

“The facts and circumstances of the case which have

been proved by the prosecution in bringing home the

guilt of the accused under Section 304 Part II Indian

Penal Code 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 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. two months in a case

like this, in our view, would be travesty of 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

75

Page 76 compensation could relieve the family of victims from

the constant agony. As a matter of fact, High Court

had been quite considerate and lenient in awarding to

the Appellant sentence of three years for an offence

under Section 304 Part II Indian Penal Code where

seven persons were killed.”

49.In Jagriti Devi v. State of Himachal Pradesh [(2009) 14

SCC 771]; wherein the Bench of this Court held that it is trite law

that Section 304 Part II comes into play when the death is caused

by doing an act with knowledge that it is likely to cause death but

there is no intention on the part of the accused either to cause death

or to cause such bodily injury as is likely to cause death.

50.One of the earlier decisions of this Court in State of Andhra

Pradesh v. Rayavarapu Punnayya and Another [(1976) 4 SCC

382], this Court succinctly examined the distinction between Section

299 and Section 300 of the IPC and in para 12 of the Judgment and

held as follows:

“In the scheme of the Penal Code, 'culpable homicide'

is genus and 'murder' its specie. All 'murder' is

'culpable homicide' but not vice-versa. Speaking

generally, 'culpable homicide' sans 'special

characteristics of murder', is 'culpable homicide not

amounting to murder'. For the purpose of fixing

punishment, proportionate to the gravity of this

generic offence, the Code practically recognises three

degrees of culpable homicide. The first is, what may

be called, culpable homicide of the first degree. This is

the gravest form of culpable homicide which is defined

in Section 300 as 'murder'. The second may be termed

76

Page 77 as 'culpable homicide of the second degree'. This is

punishable under the 1st part of Section 304. Then,

there is 'culpable homicide of the third degree.' This is

the lowest type of culpable homicide and the

punishment provided for it is, also, the lowest among

the punishments provided for the three grades.

Culpable homicide of this degree is punishable under

the second Part of Section 304.”

51.Referring to para 14 of that judgment, the Court opined that

the difference between Clause (b) of Section 299 and Clause (3) of

Section 300 is one of the degree of probability of death resulting

from the intended bodily injury. The word "likely" in Clause (b) of

Section 299 conveys the sense of 'probable' as distinguished from a

mere possibility. The words "bodily injury...sufficient in the ordinary

course of nature to cause death" mean that death will be the "most

probable" result of the injury having regard to the ordinary course of

nature.

Ultimately, the Court concluded as follows:

“From the above conspectus, it emerges that

whenever a court is confronted with the question

whether the offence is 'murder' or 'culpable homicide

not amounting to murder,' on the facts of a case, it will

be convenient for it to approach the problem in three

stages. The question to be considered at the first stage

would be, whether the accused has done an act by

doing which he has caused the death of another. Proof

of such causal connection between the act of the

accused and the death, leads to the second stage for

considering whether that act of the accused amounts

to "culpable homicide" as defined in Section 299. If the

answer to this question is prima facie found in the

77

Page 78 affirmative, the stage for considering the operation of

Section 300, Penal Code is reached. This is [the stage

at which the Court should determine whether the facts

proved by the prosecution bring the case within the

ambit of any of the four Clauses of the definition of

murder' contained in Section 300. If the answer to this

question is in the negative the offence would be

'culpable homicide not amounting to murder',

punishable under the first or the second part of

Section 304, depending, respectively, on. whether the

second or the third Clause of Section 299 is applicable.

If this question is found in the positive, but the case

comes, within any of the Exceptions enumerated in

Section 300, the offence would still be 'culpable

homicide not amounting to murder', punishable under

the First Part of Section 304, Penal Code.”

52.The principle mentioned by this court in Alister Anthony

Pareira (supra) indicates that the person must be presumed to

have had the knowledge that, his act of driving the vehicle without a

licence in a high speed after consuming liquor beyond the

permissible limit, is likely or sufficient in the ordinary course of

nature to cause death of the pedestrians on the road. In our view,

Alister Anthony Pareira (supra) judgment calls for no

reconsideration. Assuming that Shri Ram Jethmalani is right in

contending that while he was driving the vehicle in a drunken state,

he had no intention or knowledge that his action was likely to cause

death of six human beings, in our view, at least, immediately after

having hit so many human beings and the bodies scattered around,

he had the knowledge that his action was likely to cause death of so

78

Page 79 many human beings, lying on the road unattended. To say, still he

had no knowledge about his action is too childish which no

reasonable man can accept as worthy of consideration. So far as

this case is concerned, it has been brought out in evidence that the

accused was in an inebriated state, after consuming excessive

alcohol, he was driving the vehicle without licence, in a rash and

negligent manner in a high speed which resulted in the death of six

persons. The accused had sufficient knowledge that his action was

likely to cause death and such an action would, in the facts and

circumstances of this case fall under Section 304(II) of the IPC and

the trial court has rightly held so and the High Court has committed

an error in converting the offence to Section 304A of the IPC.

53.We may now examine the mitigating and aggravating

circumstances and decide as to whether the punishment awarded by

the High Court is commensurate with the gravity of the offence.

54.Mitigating circumstances suggested by the defence counsel are

as follows:

(i)The accused was only 21 years on the date of the

accident, later married and has a daughter;

(ii)Prolonged trial, judicial unfairness caused prejudice;

(iii)The accused has undergone sentence of two years

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Page 80 awarded by the High Court and, during that period, his

conduct and behavior in the jail was appreciated;

(iv)Accident occurred on a foggy day in the early hours of

morning with poor visibility;

(v)The accused had no previous criminal record nor has he

been involved in any criminal case subsequently;

(vi)The accused and the family members contributed and

paid a compensation of 65 lacs, in total, in the year 1999

to the families of the victims;

(vii)The accused had neither the intention nor knowledge of

the ultimate consequences of his action and that he was

holding a driving licence from the United States.

55.Following are, in our view, the aggravating circumstances

unfolded in this case:

(i)Six persons died due to the rash and negligent driving of

the accused and the car was driven with the knowledge

that drunken driving without licence is likely to cause

death.

(ii)Much of the delay in completing the trial could have been

avoided if wisdom had dawned on the accused earlier.

Only at the appellate stage the accused had admitted

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Page 81 that it was he who was driving the vehicle on the fateful

day which resulted in the death of six persons and delay

in completion of the trial cannot be attributed to the

prosecution as the prosecution was burdened with task of

establishing the offence beyond reasonable doubt by

examining sixty one witnesses and producing several

documents including expert evidence.

(iii)The accused did not stop the vehicle in spite of the fact

that the vehicle had hit six persons and one got injured

and escaped from the spot without giving any helping

hand to the victims who were dying and crying for help.

Human lives could have been saved, if the accused had

shown some mercy.

(iv)The accused had the knowledge that the car driven by

him had hit the human beings and human bodies were

scattered around and they might die, but he thought of

only his safety and left the place, leaving their fate to

destiny which, in our view, is not a normal human

psychology and no court can give a stamp of approval to

that conduct.

(v)Non-reporting the crime to the police even after reaching

home and failure to take any steps to provide medical

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Page 82 help even after escaping from the site.

56.Payment of compensation to the victims or their relatives is not

a mitigating circumstance, on the other hand, it is a statutory

obligation. Age of 21, as such is also not a mitigating factor, in the

facts of this case, since the accused is not an illiterate, poor, rustic

villager but an educated urban elite, undergoing studies abroad.

We have to weigh all these mitigating and aggravating

circumstances while awarding the sentence.

Sentencing

57.We have to decide, after having found on facts, that this case

would fall under Section 304 Part II, what will be the appropriate

sentence. Generally, the policy which the court adopts while

awarding sentence is that the punishment must be appropriate and

proportional to the gravity of the offence committed. Law demands

that the offender should be adequately punished for the crime, so

that it can deter the offender and other persons from committing

similar offences. Nature and circumstances of the offence; the need

for the sentence imposed to reflect the seriousness of the offence;

to afford adequate deterrence to the conduct and to protect the

public from such crimes are certain factors to be considered while

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Page 83 imposing the sentence.

58.The imposition of sentence without considering its effect on the

social order in many cases is in reality a futile exercise. In our view,

had the accused extended a helping hand to the victims of the

accident, caused by him by making arrangements to give immediate

medical attention, perhaps lives of some of the victims could have

been saved. Even after committing the accident, he only thought of

his safety, did not care for the victims and escaped from the site

showing least concern to the human beings lying on the road with

serious injuries. Conduct of the accused is highly reprehensible and

cannot be countenanced, by any court of law.

59.The High Court, in our view, has committed an error in

converting the conviction to Section 304A of the IPC from that of

304(II) IPC and the conviction awarded calls for a re-look on the

basis of the facts already discussed, otherwise this Court will be

setting a bad precedent and sending a wrong message to the public.

After having found that the offence would fall under Section 304(II)

IPC, not under Section 304A, the following sentence awarded would

meet the ends of justice, in addition to the sentence already

awarded by the High Court.

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Page 84 Community Service for Avoiding Jail Sentence

60.Convicts in various countries, now, voluntarily come forward to

serve the community, especially in crimes relating to motor vehicles.

Graver the crime greater the sentence. But, serving the society

actually is not a punishment in the real sense where the convicts pay

back to the community which he owes. Conduct of the convicts will

not only be appreciated by the community, it will also give a lot of

solace to him, especially in a case where because of one’s action and

inaction, human lives have been lost.

61.In the facts and circumstances of the case, where six human

lives were lost, we feel, to adopt this method would be good for the

society rather than incarcerating the convict further in jail. Further

sentence of fine also would compensate at least some of the victims

of such road accidents who have died, especially in hit and run cases

where the owner or driver cannot be traced. We, therefore, order as

follows:

(1)Accused has to pay an amount of Rs.50 lakh (Rupees

Fifty lakh) to the Union of India within six months, which

will be utilized for providing compensation to the victim of

motor accidents, where the vehicle owner, driver etc. could

not be traced, like victims of hit and run cases. On default,

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Page 85 he will have to undergo simple imprisonment for one year.

This amount be kept in a different head to be used for the

aforesaid purpose only.

(2)The accused would do community service for two years

which will be arranged by the Ministry of Social Justice and

Empowerment within two months. On default, he will have

to undergo simple imprisonment for two years.

The Appeal is allowed to the aforesaid extent and the accused

is sentenced as above.

........………..……………………… .……J.

(DEEPAK VERMA)

……..…………………… .………….J.

(K.S. RADHAKRISHNAN)

New Delhi,

August 3, 2012

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Page 86 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1168 OF 2012

[Arising out of S.L.P. (Crl.) No.3292 of 2010]

State Tr.P.S.Lodhi Colony ....Appellant

New Delhi

Versus

Sanjeev Nanda ....Respondent

O R D E R

1. Delay condoned.

2. Leave granted.

3. In the light of separate judgments pronounced by us

today, the judgment and order of conviction passed by

Delhi High Court under Section 304A of the Indian Penal

Code (IPC) is set aside and the order of conviction of

Trial Court under Section 304 Part II of the I.P.C. is

restored and upheld. However, we deem it appropriate to

maintain the sentence awarded by the High Court, which

the accused has already undergone.

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Page 87 ::2::

4. In addition, the accused is put to the following

terms:

(1) Accused has to pay an amount of Rs.50 lakh

(Rupees Fifty lakh) to the Union of India within

six months, which will be utilized for providing

compensation to the victim of motor accidents,

where the vehicle owner, driver etc. could not be

traced, like victims of hit and run cases. On

default, he will have to undergo simple

imprisonment for one year. This amount be kept in

a different head to be used for the aforesaid

purpose only.

(2) The accused would do community service for

two years which will be arranged by the Ministry

of Social Justice and Empowerment within two

months. On default, he will have to undergo

simple imprisonment for two years.

The Appeal is accordingly allowed in terms of the

judgments and this common order.

................................J.

(DEEPAK VERMA)

................................J.

(K.S. RADHAKRISHNAN)

NEW DELHI,

August 03, 2012.

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