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CASE NO.: Appeal (crl.)  775 of 2005

PETITIONER: Prabhakaran

RESPONDENT: State of Kerala

DATE OF JUDGMENT: 21/06/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

        1.      Challenge in this appeal is to the order passed by the  learned Single Judge of the Kerala High Court.  By the  impugned order the appellant was found guilty of the offence  punishable under Section 304 Part II of the Indian Penal Code,  1860 (in short ’IPC’).  Learned Sessions Judge, Kozhikode, had  convicted the appellant for the offence punishable under  Section 304 Part II IPC.  The High Court found the same to be  in order. Custodial sentence of five years was confirmed.  2.      The background facts in a nutshell are as follows:      

       A boy aged 10 years residing in a hostel of the Tribal  Welfare Department, while he was a student of 4th standard in  a nearby school, was run over by a bus driven by the appellant  in the middle of the road. The investigation by the police  revealed that there was evidence to the effect that even the  passengers in the bus were alarmed of the enormous speed in  which it was being driven and had cautioned the driver to stop  even crying, as they had seen the school children crossing the  road in a queue.  The investigation also revealed that even the  children crossing the road had raised both hands for stopping  the vehicle.  The passengers and pedestrians were of the view  that the bus was being driven at a high speed and that they  had cried aloud to stop the bus.  It was, in spite of all these,  that the bus ran over the said student on his head and the  bus could be stopped only 15 to 20 feet ahead of the spot of  occurrence.  In the light of the said evidence, the investigating  officer felt that there was real intention on the part of the  appellant/driver of the bus to cause death of persons to whom  harm may be caused by reason of hitting the bus and he was  charged with offence punishable under Section 302 IPC.  The  court below found that no intention had been proved in the  case. But, at the same time, the accused acted with the  knowledge that it was likely to cause death.  So, the act  committed by the appellant was culpable homicide not  amounting to murder punishable under Section 304 Part II  IPC.  Convicting him for the said offence, he was sentenced to  undergo rigorous imprisonment for five years and to pay a fine  of Rs.15,000/- with a default sentence of imprisonment for  three years.  This was assailed in appeal.           

3.      The High Court did not find any substance in the plea of   the appellant that the accused had not caused death either  with the intention of causing death or with the intention to

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cause such bodily injury as is likely to cause death or with the  knowledge that he is likely to cause such act to cause the  death. It was submitted that case is covered under Section  304A IPC. Same was not accepted.  So, it was held that this is  a case of culpable homicide. It accepted the stand of the  respondent-State that conviction is to be made for culpable  homicide.  

4.      The respective stand taken before the High Court was re- iterated in this appeal.  

5.      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 genes, 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; 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."

6.      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

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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 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.

7.      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.         8.      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  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)

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

10.     The Editorial under the heading "Road Traffic Injuries &  fatalities in India \026 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

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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.

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

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

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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."

11.     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".

12.     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.

13.     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  \025 Developing and transitional countries cumulatively  represent over 85 percent of all road traffic deaths \025 Kenya has nearly 2,000 fatalities per 10,000 crashes.  Vietnam has over 3,000 fatalities per 10,000 crashes.  \025 44% of all road traffic deaths occur in the Asia/Pacific  area, which only has 16 % of the total number of motor  vehicles.  \025 At 71,495 and 59,927 total deaths, China and India,  respectively, had the highest number of road fatalities in the  world in 1995.- \025 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.  \025 Eastern European countries represent 6% of motor  vehicles, but 11% of crash fatalities worldwide.  \025 The Latin America/Caribbean region has the second  highest crash costs behind Asia.          14.     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.   

15.     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

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suffering. Crashes often result in orphans, and some victims,  as young as infants, spend the rest of their lives with medical  facilities.

ECONOMIC IMPACT

16.     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).

THIS PROBLEM IS PREVENTABLE

17.     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.

18.     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.

          19.     When the factual scenario of the present case is  analysed, it is crystal clear that the appropriate conviction  would be under Section 304 A IPC and not Section 304 Part II  IPC. Conviction is accordingly altered. The maximum sentence  which can be imposed for offence punishable under Section  304A is two years with fine or with both. The custodial  sentence, therefore, is reduced to the maximum i.e. two years.

20.     It is contended by the learned counsel for the State that  in a case of this nature two years sentence is grossly  inadequate. There is substance in this submission considering  the increasing number of vehicular accidents resulting in  death of large number of innocent persons. It is for the  legislature to provide for an appropriate sentence. But the  statute presently provides for a maximum sentence of two  years.   

21.     The appeal is allowed to the aforesaid extent.