IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.          OF 2008 (Arising out of S.L.P. (Crl.) No.1944 of 2008)

Kuldeep Singh … Appellant

Vs.

State of Himachal Pradesh … Respondent

J U D G M E N T

DR. ARIJIT PASAYAT, J.

1. Leave granted.

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2. Appellant  faced  trial  for  offences  punishable  under

Sections 279, 337, 338 and 304(A) of the Indian Penal

Code,  1860 (in short the ‘IPC’)  and Section 185 of  the

Motor Vehicles  Act.  1988 (in short  the ‘MV Act’).   The

appellant was acquitted by learned Judicial Magistrate,

Hamirpur.   State  of  Himachal  Pradesh  preferred  an

appeal before the Himachal Pradesh High Court which by

the  impugned  judgment  set  aside  the  judgment  of

acquittal  passed  by  the  trial  court  and  directed

conviction  of  the  respondent  for  offences  punishable

under  Sections  279,  337,  338  and  304(A)  IPC  and

imposed various sentences, which were directed to run

concurrently.  The maximum sentence imposed was one

year.  

3. Background facts in a nutshell are as follows:

On 15.4.1993  the  accused-appellant  was  the  driver  of

the  truck HIU-3837. The said truck was carrying a marriage

party. When it reached near village Kacherha, on the public

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way, at about 11 AM, he lost its control, consequently it went

off the road, rolled down in the field, leaving Pratap Singh @

Pinku, Kuldeep Singh @ Jogi,  dead on the spot  and Kamal

Kishore and Manohar Lal injured persons died in the hospital

at Bhoranj later,  due to accidental  injuries,  whereas, out of

about fifty other members of the marriage-party, who were the

occupants  of  the  said  truck,  Harish  Kumar,  Amin  Chand,

Rajesh  Kumar,  Rattan  Chand,  Desh  Raj,  Tej  Ram,  Rakesh

Kumar,  Hem  Chand,  Surjit  Singh,  Mahant  Ram,  Prakash

Chand,  Pawan  Kumar,  Shambhu  Rani,  Paras  Ram,  Ranbir

Singh,  Prem Chand,  Prakash Chand and Sanjay,  sustained

simple  injuries,  whereas,  Anil  Kumar,  Joginder,  Suresh

Kumar, another Joginder Singh, Ishwar Dass, Nand Lal, Lekh

Ram and Lekh Raj sustained grievous injuries. The appellant

was  allegedly  drunk.  He  and  the  cleaner  of  the  truck  had

absconded.  The case was registered.

The police took the photographs of the spot, prepared the

site plan, truck was mechanically examined, the postmortem

reports  and  the  MLCs  of  the  injured  were  taken  into

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possession  and  after  recording  the  statements  of  the

witnesses, the challan was presented in the Court, for the trial

against the respondent.

The charges were framed and put to the appellant, to

which he pleaded not guilty and claimed trial.

Nathu Ram (PW 1) is a constable, who was on his duty to

execute  the  processes.  He  is  an  eye  witness  of  the  said

accident.  Rup Lal (PW3) was an occupant and the father of

bridegroom Kuldeep  Singh (deceased),  whose  marriage-party

was traveling in the said truck. PW2 Dile Ram (injured), PW4

Rattan  Lal,  PW5 Rattan Chand  (injured)  son  of  Salig  Ram,

PW6 Surjit Singh, PW 13 Rakesh Kumar, PW8 Lekh Ram, PW

10 Rattan Chand (injured), PW16 Rakesh Kumar (injured) and

PW 18  Sagar  Singh were  occupants  of  the  truck,  but  they

broadly  did  not  support  the  case  of  the  prosecution,  as

alleged.  However, he admitted the accident.

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4. The trial court came to the conclusion that there was no

rash or negligent driving as claimed by the prosecution.  In

appeal, the High Court relied on the evidence of the witnesses

particularly  PWs.  1,  3  &  4  and  recorded  that  rash  and

negligent  driving  is  clearly  established.   Accordingly  State’s

appeal  was  allowed  and  conviction  was  recorded  and

sentences imposed.

5. Learned  counsel  for  the  appellant  submitted  that  the

accident took place not because of negligence but because the

appellant tried to save the lives of children who were playing

on the road and therefore, the truck climbed on the stones by

the  side  of  the  road  and  its  rod  was  broken.  It  was  also

submitted that the appellant has already suffered custody of

more than nine months and, therefore, the sentence should be

restricted to the period already undergone.

6. Learned  counsel  for  the  State  on  the  other  hand

submitted that rash and negligent driving has resulted in the

death  of  four  persons  and  several  others  were  seriously

injured.

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7. 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.

8. Section 304-A carves out a specific offence where death

is caused by doing a rash or negligent act and that act does

not  amount  to  culpable  homicide  under  Section  299  or

murder 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

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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.

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9. 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 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

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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".

10. 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

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

11. "Negligence",  says  the  Restatement  of  the  law of  Torts

published by the American Law Institute (1934) Vol. I.  Section

28 "is conduct which falls below the standard established for

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

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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.

12. 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.

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Probably, of all the epithets that can be applied 'reckless' most

nearly covers the case. "

13. 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.

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14. In  R. v.  Caldwell  (1981)  1 All  ER 961, it  was observed

that:-  

"Nevertheless, to decide whether someone has  been  `reckless',  whether  harmful consequences  of  a particular kind will  result from  his  act,  as  distinguished  from  his actually intending such harmful consequences to follow, 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 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

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liability  are  seldom  solved  by  simply  asking whether the test is subjective or objective."

15. The decision of R. v Caldwell (Supra) has been cited with

approval  in R  v.  Lawrence (1981)  1 All  ER 974  and it  was

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".

16. The  above  position  was  highlighted  in  Naresh  Giri v.

State of M.P. [2008(1) SCC 791].

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17. The  evidence  of  PWs  1,  3  &  4  clearly  show  that  the

vehicle was being driven at a very high speed.  Evidence on

record  show that  more  than 50  persons  were  there  in  the

truck and the appellant was driving the same at a very high

speed.   One of the witnesses has stated that the truck was

being  driven  as  if  it  was  an  aeroplane.  Therefore,  the

conviction as recorded cannot be faulted.

18. Coming to the question of sentence,  in  Dalbir Singh v.

State  of  Haryana (2000(5)  SCC  82)  it  has  been  stated  as

follows:

“…………….While considering the quantum of  sentence  to  be  imposed  for  the offence  of causing death by rash or negligent driving of automobiles,  one of the prime considerations should  be  deterrence.  A  professional  driver pedals  the  accelerator  of  the  automobile almost  throughout  his  working  hours.  He must constantly inform himself that he cannot afford  to  have  a  single  moment  of  laxity  or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need  not  necessarily  cause  any  accident;  or even  if  any  accident  occurs  it  need  not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly, that

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even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of  the offence  for causing death of  a human being due to his callous driving of the vehicle he cannot escape from a jail sentence. This is the role which the courts can play, particularly at  the  level  of  trial  courts,  for  lessening  the high  rate  of  motor  accidents  due  to  callous driving of automobiles.”

19. Above being the position, we find no merit in this appeal,

which is accordingly dismissed.

…………………………….J. (Dr. ARIJIT PASAYAT)

…………………………….J. (H.S. BEDI)

New Delhi, July 16, 2008

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