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CASE NO.: Appeal (crl.)  1530 of 2007

PETITIONER: Naresh Giri

RESPONDENT: State of M.P.

DATE OF JUDGMENT: 12/11/2007

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.   1530             OF 2007 (Arising out of S.L.P (Crl.) No.4805 of 2006)

Dr. ARIJIT PASAYAT, J.  

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Madhya Pradesh High Court  dismissing the criminal revision petition filed by the appellant.   

3.      Background facts in a nutshell are as follows:         On 29.8.2004 bus bearing no. MPO 10588 was going  from Ahrauli towards Kailaras.  While it was near a railway  crossing, an accident took place.  A train  hit the bus at the  railway crossing. In the accident the bus  which was being  driven by the appellant was badly damaged and as a result of  the accident several passengers got injured and two persons  namely Bhagoli @ Bhagwati and Ankush died.  First  information report was lodged by Brijmohan Sharma,  Constable.  After completion of investigation charge sheet was  filed.  Charges were framed in relation to the offences  punishable under Section 302 and alternatively under Section  304, 325 and 323 of the Indian Penal Code, 1860 (in short the  ’IPC’).   

       Questioning correctness of the charges framed, the  revision petition was filed.  It was the stand of the appellant  that Section 302 IPC has no application to the facts of the  case.  The High Court did not accept the plea.  It found no  substance in the stand taken by the appellant that he had no  intention to kill the passengers.  High Court was of the view  that on the basis of material available, charges were framed  and the intention of the appellant has been gathered when   the evidence is adduced.

4.      Learned counsel for the appellant submitted that the  accident took place near the railway crossing which was un- manned.  The materials on record show that the engine of the  train hit rear portion of the bus. Ultimately it may have been  an error of judgment on the part of the appellant and the fact  that the engine hit rear portion shows that there was no  apparent negligence on the part of the appellant. Therefore,  Section 302 has no application and at the most it may be  Section 304-A IPC.  

5.      In response, learned counsel for the respondent

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submitted that the fact that the passengers were asking the  appellant not to cross the railway line shows that there was  negligence and appellant was acting in a rash and negligent  manner without proper care and caution.   

6.      Section 304-A IPC applies to cases where there is no  intention to cause death and no knowledge that the act done,  in all probabilities, will cause death.  This provision is directed  at offences outside the range of Sections 299 and 300 IPC.   Section 304-A applies only to such acts which are rash and  negligent and are directly the cause of death of another  person.  Negligence and rashness are essential elements under  Section 304-A.

7.      Section 304-A carves out a specific offence where death is  caused by doing a rash or negligent act and that act does not  amount to culpable homicide under Section 299 or murder  under Section 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 the intent or knowledge 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.  The provision of  this section is not limited to rash or negligent driving. Any  rash or negligent act whereby death of any person is caused  becomes punishable.  Two elements either of which or both of  which may be proved to establish the guilt of an accused are  rashness/negligence, a person may cause death by a rash or  negligent act which may have nothing to do with driving at all.   Negligence and rashness to be punishable in terms of Section  304-A must be attributable to a state of mind wherein the  criminality arises because of no error in judgment but of a  deliberation in the mind risking the crime as well as the life of  the person who may lose his life as a result of the crime.  Section 304-A discloses that criminality may be that apart  from any mens rea,  there may be no motive or intention still a  person may venture or practice such rashness or negligence  which may cause the death of other. The death so caused is  not the determining factor.

8.      What constitutes negligence has been analysed in  Halsbury’s Laws of England (4th Edition) Volume 34 paragraph  1 (para 3) as follows:

       "Negligence is a specific tort and in any  given circumstances is the failure to exercise  that care which the circumstances demand.   What amounts to negligence depends on the  facts of each particular case. It may consist in  omitting to do something which ought to be  done or in doing something which ought to be  done either in a different manner or not at all.   Where there is no duty to exercise care,  negligence in the popular sense has no legal  consequence, where there is a duty to exercise  care, reasonable care must be taken to avoid  acts or omissions which can be reasonably  foreseen to be likely to cause physical injury to  persons or property. The degree of care  required in the particular case depends on the  surrounding circumstances, and may vary  according to the amount of the risk to be

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encountered and to the magnitude of the  prospective injury. The duty of care is owed  only to those persons who are in the area of  foreseeable danger, the fact that the act of the  defendant violated his duty of care to a third  person does not enable the plaintiff who is also  injured by the same act to claim unless he is  also within the area of foreseeable danger. The  same act or omission may accordingly in some  circumstances involve liability as being  negligent although in other circumstances it  will not do so. The material considerations are  the absence of care which is on the part of the  defendant owed to the plaintiff in the  circumstances of the case and damage  suffered by the plaintiff, together with a  demonstrable relation of cause and effect  between the two".

9.      In this context the following passage from Kenny’s  Outlines of Criminal Law, 19th Edition (1966) at page 38 may  be usefully noted :

"Yet a man may bring about an event  without having adverted to it at all, he may not  have foreseen that his actions would have this  consequence and it will come to him as a  surprise. The event may be harmless or  harmful, if harmful, the question rises whether  there is legal liability for it. In tort, (at common  law) this is decided by considering whether or  not a reasonable man in the same  circumstances would have realised the  prospect of harm and would have stopped or  changed his course so as to avoid it. If a  reasonable man would not, then there is no  liability and the harm must lie where it falls.  But if the reasonable man would have avoided  the harm then there is liability and the  perpetrator of the harm is said to be guilty of  negligence. The word ’negligence’ denotes, and  should be used only to denote, such  blameworthy inadvertence, and the man who  through his negligence has brought harm  upon another is under a legal obligation to  make reparation for it to the victim of the  injury who may sue him in tort for damages.  But it should now be recognized that at  common law there is no criminal liability for  harm thus caused by inadvertence. This has  been laid down authoritatively for  manslaughter again and again. There are only  two states of mind which constitute mens rea  and they are intention and recklessness. The  difference between recklessness and negligence  is the difference between advertence and  inadvertence they are opposed and it is a  logical fallacy to suggest that recklessness is a  degree of negligence The common habit of  lawyers to qualify the word "negligence" with  some moral epithet such as wicked’ ‘gross’ or  ‘culpable’ has been most unfortunate since it  has inevitably led to great confusion of thought  and of principle. It is equally misleading to  speak of criminal negligence since this is

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merely to use an expression in order to explain  itself."

10.     "Negligence", says the Restatement of the law of Torts  published by the American Law Institute (1934) Vol. I. Section  28 "is conduct which falls below the standard established for  the protection of others against unreasonable risk of harm". It  is stated in Law of Torts by Fleming at page 124 (Australian  Publication 1957) that this standard of conduct is ordinarily  measured by what the reasonable man of ordinary prudence  would do under the circumstances. In Director of Public  Prosecutions v. Camplin (1978) 2 All ER 168 it was observed by  Lord Diplock that "the reasonable man" was comparatively late  arrival in the laws of provocation. As the law of negligence  emerged in the first half of the 19th century it became the  anthropomorphic embodiment of the standard of care required  by law. In order to objectify the law’s abstractions like "care"  "reasonableness" or "foreseeability" the man of ordinary  prudence was invented as a model of the standard of conduct  to which all men are required to conform. 11.     In Syed Akbar v. State of Kamataka, (1980) 1 SCC 30, it  was held that "where negligence is an essential ingredient of  the offence, the negligence to be established by the  prosecution must be culpable or gross and not the negligence  merely based upon an error of judgment. As pointed out by  Lord Atkin in Andrews v. Director of Public Prosecutions (1937)  (2) All ER 552) simple lack of care such as will constitute civil  liability, is not enough; for liability under the criminal law a  very high degree of negligence is required to be proved.  Probably, of all the epithets that can be applied ’reckless’ most  nearly covers the case. "

12.     According to the dictionary meaning ‘reckless’ means  ‘careless’, ‘regardless’ or heedless of the possible harmful  consequences of one’s acts’. It presupposes that if thought was  given to the matter by the doer before the act was done, it  would have been apparent to him that there was a real risk of  its having the relevant harmful consequences; but, granted  this, recklessness covers a whole range of states of mind from  failing to give any thought at all to whether or not there is any  risk of those harmful consequences, to recognizing the  existence of the risk and nevertheless deciding to ignore it. In  R. v. Briggs (1977) 1 All ER 475 it was observed that a man is  reckless in the sense required when he carries out a deliberate  act knowing that there is some risk of damage resulting from  the act but nevertheless continues in the performance of that  act. 13.     In R. v. Caldwell (1981) 1 All ER 961, it was observed  that:-  "Nevertheless, to decide whether someone  has been ‘reckless’, whether harmful  consequences of a particular kind will result  from his act, as distinguished from his actually  intending such harmful consequences to  follow, does call for some consideration of how  the mind of the ordinary prudent individual  would have reacted to a similar situation. If  there were nothing in the circumstances that  ought to have drawn the attention of an  ordinary prudent individual to the possibility  of that kind of harmful consequence, the  accused would not be described as ‘reckless’ in  the natural meaning of that word for failing to  address his mind to the possibility; nor, if the

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risk of the harmful consequences was so slight  that the ordinary prudent individual on due  consideration of the risk would not he deterred  from treating it as negligible, could the  accused be described as reckless in its  ordinary sense, if, having considered the risk,  he decided to ignore it. (In this connection the  gravity of the possible harmful consequences  would be an important factor. To endanger life  must be one of the most grave). So, to this  extent, even if one ascribes to ’reckless’ only  the restricted meaning adopted by the Court of  Appeal in Stephenson and Briggs, of foreseeing  that a particular kind of harm might happen  and yet going on to take the risk of it, it  involves a test that would be described in part  as ’objective’ in current legal jargon. Questions  of criminal liability are seldom solved by  simply asking whether the test is subjective or  objective."

14.     The decision of R. v Caldwell (Supra) has been cited with  approval in R v. Lawrence (1981) 1 All ER 974 and it was  observed that:

"--- Recklessness on the part of the doer  of an act does presuppose that there is  something in the circumstances that would  have drawn the attention of an ordinary  prudent individual to the possibility that his  act was capable of causing the kind of serious  harmful consequences that the section which  creates the offence was intended to prevent,  and that the risk of those harmful  consequences occurring was not so slight that  an ordinary prudent individual would feel  justified in treating them as negligible. It is  only when this is so that the doer of the act is  acting ‘recklessly’ if, before doing the act, he  either fails to give any thought to the  possibility of there being any such risk or,  having recognized that there was such risk, he  nevertheless goes on to do it".

14.     Normally, as rightly observed by the High Court charges  can be altered at any stage subsequent to the framing of  charges. But the case at hand is one where prima facie Section  302 IPC has no application.

15.     Accordingly, the appeal is allowed.  The charges stand   altered to Section 304-A IPC along with Sections 279 and 337  IPC.