REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 428 OF 2002

State of Karnataka Appellant

Vs.

Muralidhar Respondent

J U D G M E N T

DR. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a learned Single Judge

of  the  Karnataka High Court  allowing the Revision  Petition  filed by the

respondent.  The respondent faced trial  for alleged commission of offence

punishable under Sections 279, 338, 304-A of the Indian Penal Code, 1860

(in short the ‘IPC’) by learned IIIrd Additional Sessions Judge, Mangalore.

For  the  offence  punishable  under  Section  338  IPC  the  respondent  was

sentenced to undergo rigorous imprisonment for six months and to pay a

fine of Rs.1,000/- with default stipulation. For the offence punishable under

Section 304-A IPC he was sentenced to rigorous imprisonment for one year

and to pay a fine of Rs.5,000/- with default  stipulation.  The appeal was

dismissed by learned IIIrd Additional Sessions Judge, D.K. Mangalore.

2. Background facts in a nutshell are as follows:

The respondent had been driving the bus on Ullal-Hejamadi route on

3.12.1995  at  about  10.30  a.m.  A  tempo  was  coming  from the  opposite

direction. Both the vehicles rubbed through resulting in the right hand side

portion of the bus hitting the right hand side portion of the tempo, as a result

of  which  a  boy  sitting  at  that  hind  portion  of  the  tempo  died  and  one

passenger sustained grievous injuries. It was in respect of this accident that

the respondent came to be prosecuted and convicted.

The primary stand before the High Court was that the offences were

such  that  the  accused  should  not  be  required  to  undergo  imprisonment.

Accordingly, taking note of Section 71 IPC, High Court held that for the

offence under Section 338 IPC the accused was to pay a fine of Rs.1,000/-

with default stipulation and for the offence under Section 304-A the accused

was to pay a fine of Rs.5,000/- with default stipulation and out of the total

2

amount of Rs.6,000/- a sum of  Rs.5,000/- was to be paid to the father of the

deceased boy.  

3. Learned counsel for the appellant-State submitted that the High Court

has  not  indicated  any  reason  as  to  why  this  was  not  a  fit  case  where

custodial sentence was not to be imposed. The High Court found that the

accused  was rightly  convicted  for  the  offence  punishable  under  Sections

279, 338 and 304-A IPC. After having so observed without  any basis or

reason the custodial sentence was waived and fines were imposed. It was

also noted that  no separate  sentence was necessary in  respect  of  offence

under  Section  279  IPC.  It  is  submitted  that  the  sentences  should  be

commensurate with the gravity of the offence.  

4. Learned counsel for the respondent on the other hand submitted that

the occurrence took place long back and, therefore, taking the overall view

waived the custodial sentence and imposed fines.  

5. In the instant case, 16 years old boy lost his life because of the rash

and negligent acts of the respondent.

3

6. Section 304A speaks of causing death by negligence.  This section

applies to rash and negligence acts and does not apply to cases where death

has been voluntarily caused.  This section obviously does not apply to cases

where there is an intention to cause death or knowledge that the act will in

all probability cause death. It only applies  to cases in which without any

such intention or knowledge death is caused by what is described as a rash

and negligent act.  A negligent act is an act done without doing something

which a reasonable man guided upon those considerations which ordinarily

regulate the conduct of human affairs would do or act which a prudent or

reasonable man would not do in the circumstances attending it. A rash act is

a  negligent  act  done  precipitately.  Negligence  is  the  genus,  of  which

rashness is the species. It has sometimes been observed that in rashness the

action  is  done  precipitately  that  the mischievous  or  illegal  consequences

may fall,  but  with  a  hope  that  they will  not.  Lord  Atkin  in  Andrews v.

Director of Public Prosecutions (1937) AC 576 at p.583 = 2 All E.R. 552)

observed as under:                  

“Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees  of  negligence;  and  a  very  high  degree  of negligence is required to be proved before the felony is established.  Probably  of  all  the  epithets  that  can  be applied ‘recklessness’ most nearly covers the case.  It is difficult to visualize a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter;

4

but  it  is  probably not  all  embracing,  for  ‘recklessness’ suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it,  and yet shown in the means adopted to avoid the risk such a high degree of negligence as would justify a conviction.”

7. Section 304-A 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.  The  provision  applies  only  to  such  acts  which  are  rash  and

negligent and are directly cause of death of another person.  Negligence and

rashness are essential elements under Section 304-A. Culpable negligence

lies in the failure to exercise reasonable and proper care and the extent of its

reasonableness  will  always depend upon the circumstances  of  each  case.

Rashness  means  doing  an  act  with  the  consciousness  of  a  risk  that  evil

consequences will follow but with the hope that it will not. Negligence is a

breach of duty imposed by law.  In criminal cases, the amount and degree of

negligence  are  determining  factors.  A  question  whether  the  accused’s

conduct amounted to culpable rashness or negligence depends directly on

the question as to what is the amount of care and circumspection which a

prudent and reasonable man would consider to be sufficient considering all

the  circumstances  of  the  case.  Criminal  rashness  means  hazarding  a

5

dangerous or wanton act with the knowledge that it is dangerous or wanton

and the further knowledge that it  may cause injury but done without any

intention to cause injury or knowledge that it would probably be caused.

8. As noted  above,  “Rashness”  consists  in  hazarding  a  dangerous  or

wanton act with the knowledge that it is so, and that it may cause injury.

The criminality lies in such a case in running the risk of doing such an act

with  recklessness  or  indifference  as  to  the  consequences.  Criminal

negligence on the other hand, is the gross and culpable neglect or failure to

exercise that  reasonable and proper care and precaution to guard against

injury either to the public generally or to an individual in particular, which,

having regard to all the circumstances out of which the charge has arisen it

was the imperative duty of the accused person to have adopted.

9. The distinction has been very aptly pointed out  by Holloway J. in

these words:

‘‘Culpable  rashness  is  acting  with  the  consciousness that  the  mischievous  and  illegal  consequences  may follow, but with the hope that they will not, and often with  the  belief  that  the  actor  has  taken  sufficient precautions  to  prevent  their  happening.  The imputability  arises  from  acting  despite  the

6

consciousness.  Culpable  negligence  is  acting  without the  consciousness  that  the  illegal  and  mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him  and  that  if  he  had,  he  would  have  had  the consciousness.  The  imputability  arises  from  the negligence of the civic duty of circumspection.” (See In re: Nidamorti Nagabhusanam 7 Mad. H.C.R. 119)

10. Vehicular accidents resulting in deaths and injuries are spiraling.

11. The Editorial under the heading “Road Traffic Injuries & fatalities in

India  –  a  modern  epidemic”  in  Indian  J.  Med.  Res.  123,  January  2006

contains  some  interesting  observations.   The  relevant  portions  read  as

follows:

“The United Nations General Assembly adopted a resolution  on  road  safety  on  October  26,  2005  which invites  Member  States  to  implement  the recommendations  of  the World Report  on Road Traffic Injury  Prevention;  to  participate  in  the  first  United Nations Global Road Safety Week; and to recognize the third Sunday in  November  of  every year as  the  World Day  of  Remembrance  for  Road  Traffic  Victims’.  This resolution follows the publication of The World Report on Road Traffic Injury Prevention by the World Health Organization in 2004. This report highlights the fact that all over the world working age people are more likely to suffer hospitalization, permanent disability and death due to  road  traffic  injuries  than  most  other  diseases.  The situation in India is not very different.

7

About  82,000  persons  were  killed  on  Indian roads  in  2002.  Official  statistics  regarding  serious injuries are not reliable as they underestimate the actual number, but it  is  estimated that the number of people hospitalized may be 15-20 times the number killed. In a do-nothing scenario, it  is possible that India will have 1,20,000  -  1,30,000  road  traffic  fatalities  in  the  year 2008  and  possibly  1,50,000  -  1,75,000  in  2015.  Our vision should aim at reducing the fatalities to less than 1,00,000 in the short term (2008) and less than 70,000 in the long term (2015).

xxx xxx xxx

Safety measures for the near future

xxx xxx xxx

Motor  vehicle  occupants:  (i)  Enforcement  of seatbelt  use laws countrywide; (ii) restricting travel in front  seat  of  cars  by  children  has  the  potential  of reducing injuries  dramatically;  and (iii)  bus  and truck occupant injuries, fatalities, and injuries caused to other road  users  can  be  reduced  significantly  by  enforcing strict  observance  of  speed  limit  regulations  on highways.  Ensuring  that  bus  timetables  and  truck movement  schedules  make  it  possible  for  drivers  to observe speed limits with ease. Random speed checking on highways would help ensure such measures.

xxx xxx xxx

8

Road safety strategies - Long term

Traffic  calming  and  speed  control:  (i)  Aim  at implementing  speed  control  and  traffic  calming measures in all urban areas and at appropriate locations on  rural  highways  by  altering  road  design,  vehicle monitoring  through  intelligent  transport  systems,  and vehicle design by the year 2015. This measure is likely to give us the maximum savings in terms of lives and serious injuries; and (ii) segregated lanes for vulnerable road  users  and  buses  in  urban  areas.  Non-motorized transport and buses must be provided segregated lanes on all major arterial roads in urban areas. India specific designs  need  to  be  developed  and  phase  wise implementation plans drawn up for all cities.

xxx xxx xxx

Vehicle  safely:  (i)  All  vehicles  sold  in  India should meet international crashworthiness standards by 2010; (ii)  all  buses and trucks should meet pedestrian impact standards by 2010; (iii) all urban buses to have low  floors  and  automatic  closing  doors;  (iv) crashworthiness  standards  must  be  developed  for  all indigenous vehicles by 2010 and implemented by 2012; (v)  installation  of  Intelligent  Transport  Systems (ITS) and  other  modern  safety  devices  for  assisting  and controlling drivers; and (vi) driving under the influence of  alcohol  and  other  drugs.  A  long  term  strategy  to reduce drinking and driving incidence to less than 10 per cent of all crashes needs to be drawn up for the next 10 yr. Sensitization  of the  public to the  extent  of the problem. Institution of random roadblocks and checking on urban roads  and rural  highways.  Ignition  interlock on cars.”

9

12. In  “Global  Road  Safety”  certain  revealing  data  have  also  been

provided. They read as follows:-

“THE  COMING  PLAGUE  OF  ROAD  TRAFFIC

INJURIES: A PREVENTABLE BURDEN FOR RICH

AND POOR COUNTRIES”.

13. Almost 1.2 million people are killed each year and 20-50 million are

injured or disabled, most people are unaware that road traffic injuries are a

leading cause of death and disability.

14. In developing countries, death rates from vehicle crashes are rising,

and disproportionately high in relation to the number of crashes. According

to a report published in 2000  

•  Developing and transitional countries cumulatively represent over

85 percent of all road traffic deaths

•  Kenya has nearly 2,000 fatalities per 10,000 crashes. Vietnam has

over 3,000 fatalities per 10,000 crashes.  

• 44% of all road traffic deaths occur in the Asia/Pacific area, which

only has 16 % of the total number of motor vehicles.  

10

•  At 71,495 and 59,927 total deaths, China and India, respectively,

had the highest number of road fatalities in the world in 1995.-

• Pedestrian deaths represent 62 % of all traffic fatalities in Lebanon.

In most developing countries vulnerable road users, including pedestrians,

bicycle and motor cycle riders, account for the majority of all fatalities.  

•  Eastern  European  countries  represent  6% of  motor  vehicles,  but

11% of crash fatalities worldwide.  

•  The Latin America/Caribbean region has the second highest crash

costs behind Asia.

15. As vehicle  use  in  developing  countries  are  increasing,  road  traffic

injuries  are  expected  to  become  the  third  leading  cause  of  death  and

disability worldwide by 2020. In developing countries, each vehicle is much

more  lethal  than  the  vehicles  in  developed  countries,  because  it  most

frequently takes the lives not of vehicle occupants, but of vulnerable road

users: pedestrians,  cyclists.  Many developing countries  are increasing the

rate of motorized vehicle use at up to 18% per year. In India, for example,

there has been a 23% increase in the number of vehicles from 1990-1999

and a 60-fold increase is predicted by 2050.   

11

16. The  human  toll  in  such  accidents  is  tragic.  Survivors  and  family

members are affected not only by an immediate death or disability, but also

lifetime  psychological  and  physical  suffering.  Crashes  often  result  in

orphans, and some victims, as young as infants, spend the rest of their lives

with medical facilities.

ECONOMIC IMPACT

17. In addition  to  the devastating  human toll,  the  economic  impact  of

road crashes is  also enormous. Many of those injured or killed are wage

earners,  leaving families destitute and without  means of support.  Loss of

wages, property damage, and other factors affected by road traffic crashes

represented 4.6% of the gross national product of the United States in 1994.

In developing countries,  road traffic crashes represent  3-5% of the GNP.

‘The estimated annual cost of road traffic crashes in developing countries

exceeds  $100  billion  (US).  This  amounts  to  nearly  double  the  total

combined development assistance these countries receive every year from

bilateral and multi-lateral government organizations. Globally, the estimated

annual costs of road crashes are 500 billion (US).

12

THIS PROBLEM IS PREVENTABLE

18. We have the tools needed to combat this epidemic. In the developed

nations,  proven  methods  such  as  enforcement  of  laws  regarding  driving

under the influence of alcohol or drugs, reducing speed limits, and requiring

seat belts and restraints have shown significant reduction in traffic fatalities.

Road  design  and  road  environment,  vehicle  design,  and  road  safety

standards  are  also  strategies  that  successfully  address  traffic  safety.   For

maximum impact of RTI’s, a systems approach with multiple, scientifically

proven prevention techniques must be employed. Education alone has been

shown to be less effective, and often ineffective.

19. Proven  interventions  for  developed  countries  require  research,

modification, and testing for developing countries. For example, developing

countries face poorly designed and maintained roadways, unsafe vehicles,

drivers under the influence of drugs or alcohol, lack of national policies, and

inadequate  enforcement.  Success  will  require  significant  new  resources

supported by sustained political commitment.

13

20. These  aspects  were  highlighted  in  Prabhakaran v.  State  of  Kerala

(2007 (8) SCALE 605).

21. Undue sympathy to impose inadequate sentence would do more harm

to the justice system to undermine the public confidence in the efficacy of

law and society could not  long endure under such serious threats.   It  is,

therefore, the duty of every court to award proper sentence having regard to

the  nature  of  the  offence  and  the  manner  in  which  it  was  executed  or

committed  etc.  This  position  was  illuminatingly  stated  by  this  Court  in

Sevaka Perumal etc. v. State of Tamil Naidu (AIR 1991 SC 1463).

22. After giving due consideration to the facts and circumstances of each

case,  for  deciding  just  and  appropriate  sentence  to  be  awarded  for  an

offence, the aggravating and mitigating factors and circumstances in which

a crime has been committed are to be delicately balanced on the basis of

really relevant circumstances in a dispassionate manner by the Court.  Such

act of balancing is indeed a difficult task.  It has been very aptly indicated in

Dennis Councle MCGDautha v.  State of Callifornia: 402 US 183: 28 L.D.

2d 711  that no formula of a foolproof nature is possible that would provide

a reasonable criterion in determining a just and appropriate punishment in

14

the infinite variety of circumstances that may affect the gravity of the crime.

In the absence of any foolproof formula which may provide any basis for

reasonable criteria to correctly assess various circumstances germane to the

consideration of gravity of crime, the discretionary judgment in the facts of

each  case,  is  the  only  way  in  which  such  judgment  may  be  equitably

distinguished.

23. The object should be to protect the society and to deter the criminal in

achieving the avowed object of law by imposing appropriate sentence.  It is

expected  that  the  Courts  would  operate  the  sentencing  system so  as  to

impose such sentence which reflects the conscience of the society and the

sentencing process has to be stern where it should be.

24. Imposition  of  sentence  without  considering its  effect  on  the social

order in many cases may be in reality a futile exercise. The social impact of

the  crime,  e.g.  where  it  relates  to  offences  against  women,  dacoity,

kidnapping, misappropriation of public money, treason and other offences

involving moral turpitude or moral delinquency which have great impact on

social order, and public interest, cannot be lost sight of and per se require

exemplary treatment. Any liberal attitude by imposing meager sentences or

taking too sympathetic view merely on account of lapse of time in respect of

15

such offences will  be result-wise counter  productive in  the  long run and

against  societal  interest  which needs to be cared for and strengthened by

string of deterrence inbuilt in the sentencing system.  

25. The Court will be failing in its duty if appropriate punishment is not

awarded  for  a  crime  which  has  been  committed  not  only  against  the

individual  victim but  also  against  the  society  to  which  the  criminal  and

victim belong.   The punishment  to  be awarded  for  a  crime must  not  be

irrelevant but it should conform to and be consistent with the atrocity and

brutality with  which  the crime has  been perpetrated,  the  enormity of the

crime warranting public abhorrence and it should “respond to the society’s

cry for justice against the criminal”.  

26. This  is  a  case  where  the  High  Court  has  without  considering  the

relevant  aspects  and  even  without  indicating  any  reason,  waived  the

custodial sentence and imposed only fine. The judgment therefore is clearly

unsustainable. The impugned judgment of the High Court is set aside and

that of the trial Court is restored.  

27. The appeal is allowed.  

………………………………….J.

16

(Dr. ARIJIT PASAYAT)

………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, March 16, 2009

17