Holding

Section 302 IPC does not apply; the appropriate charge is Section 304‑A IPC with Sections 279 and 337.

Summary

The appellant, a bus driver, was charged under Section 302 IPC for the death of two passengers when a train struck his bus at an unmanned railway crossing. He contended that the train hit the rear of the bus and that there was no negligence on his part, so the murder charge was inappropriate. The High Court rejected his revision petition and upheld the original charges. The Supreme Court held that Section 302 requires intention or knowledge of likely death, which was absent, and that the appropriate charge is Section 304‑A IPC, which punishes death caused by a rash or negligent act without intent. The Court clarified the meaning of negligence and recklessness, emphasizing that only culpable or gross negligence, not mere error of judgment, attracts criminal liability. Consequently, the appeal was allowed and the charges were altered to Section 304‑A together with Sections 279 and 337 IPC.

Issues considered

Whether the facts constitute an offence punishable under Section 302 IPC.
Whether charges framed can be altered after the framing stage.
Whether Section 304‑A IPC is applicable to the driver’s conduct.
What degree of negligence or recklessness is required for liability under Section 304‑A.

Legislation cited

Indian Penal Code, 1860s. 279, s. 302, s. 304, s. 304A, s. 323, s. 325, s. 337

Subjects

Section 304Arash negligenceculpable homicidecharge alterationrailway crossing accidentmotor vehicle accidentcriminal lawnegligencerecklessness

Judgment

)

NARESHGIRI A
v.
STATEOFM.P.

NOVEMBER 12, 2007
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

Penal Code, 1860:
ss. 302, 304 A, 279 and 337-Train hitting the bus carrying C
passengers when it was near the railway crossing-Injuries to
passengers and death oftwo-Driver charged u/s 302 and alternatively
u/ss. 304, 325 and 323-Drivers 'case that railway crossing unmanned
and engine hitting rear portion ofthe bus, thus, s. 302 not applicable-
Held: Charges can be altered at any stage subsequent to framing of D
charges-On facts, s. 302 not applicable-Hence, charges altered to
s. 304 A with ss. 279 and 337.
s. 304 A-Applicability of-Determination-Held: s. 304 A
applies to rash and negligent acts which directly causes death-There
should be neither intention nor knowledge to cause death-Negligence E
and rashness are essential attributes ofs. 304 A.
Words and Phrases: 'Negligence', 'reckless '-Meaning of
According to the prosecution case, appellant was driving a bus
carrying several passengers. When the bus was at railway crossing, F
it was hit by a train and was badly damaged. As a result several
passengers got injured and two persons died. FIR was lodged.
Investigation was carried out. Charges were framed under s. 302
and alternatively under s. 304, 325 and 323 IPC against the
appellant. Appellant filed revision petition questioning the charges G
framed. High Court dismissed the revision petition. Hence, the
present appeal.

Appellant contended that the accident took place near the un-

987 H
~ \

988 SUPREME COURT REPORTS [2007] 11 S.C.R.

A manned railway crossing; that the materials on record show that the
engine of the train hit rear portion of the bus; that ultimately it may
have been an error of judgment on the part of the appellant; and that
the fact that the engine hit rear portion shows that there was no
appa:-ent negligence on the part of the appellant, therefore, section
B 302 has no application.
~-
Respondent-State contended 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.
c
Allowing the appeal, the Court
HELD: 1.1. 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
D 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. It carves out
a specific offence where death is caused by doing a rash or negligent
E 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
F 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
G driving. Any rash or negligent act whereby death ofany 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
H rashness to be punishable in terms of Section 304-A must be
NARESHGIRiv. STATE 989

attributable to a state of mind wherein the criminality arises because A
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 B
may cause the death of other. The death so caused is not the
determining factor. [Paras 6 and 7] [991-C, D, E, F, G; 992-A, BJ
1.2. '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 C
done, it would have been apparent to him that there was a real risk
ofits having the relevant harmful consequences;· but, granted this,
recklessness covers a whole range of state 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 D
,J'.
nevertheless deciding to ignore it. [Para 12] [994-E, F]
Syed Akbar v. State of Kamataka, [1980] 1 SCC 30, referred
to.
Director ofPublic Prosecutions v. Camp/in, (1978) 2 All ER 168; E
Andrews v. Director ofPublic Prosecutions, (1937) 2 All ER 552; R.
v. Briggs, (1977) 1 All ER 475; R. v. Caldwell, (1981) 1 All ER 961;
and R v. Lawrence, (1981) 1 All ER 974, referred to.

Hals bury 's Laws ofEngland (4th Edition) Volume 34 paragraph F
1; Kenny's Outlines of Criminal Law 19th Edition (1966) p38;
Restatement ofthe law of Torts American Law Institute (1934) Vol.
I; and Law ofTorts by Fleming p 124 Australian Publication (1957),
referred to.

2. High Court rightly observed that the charges can be altered G
at any stage subsequent to the framing of charges. But to the instant
case,primafacie section 302 IPC has no application. The charges
are altered to section 304-A IPC along with sections 279 and 337
IPC. [Para 14 and 15] (996-B]
H
990 SUPREME COURT REPORTS [2007] 11 S.C.R.

A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1530of2007.
From the final Judgment and Order dated 26.6.2006 of the High
Court of Madhya Pradesh at Jabalpur Bench at Gwalior in Criminal
Revision No. 765 of 2005.
B
S.K. Dubey, Rajul Shrivastav and Anil Shrivastav for the Appellant. f
'-

Vikas Upadhyay and B.S. Banthia for the Respondent.
The Judgment of the Court was delivered by
c
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.
D
3. Background facts in a nutshell are as follows: A
.
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
E 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 lodg~d by Brijmohan Sharma, Constable. After completion of
investigation charge sheet was filed. Charges were framed in relation to
F 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
G 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
.:ic:.
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.
H
NARESHGIRiv. STATE[PASAYAT,J.] 991

4. Learned counsel for the appellant submitted that the accident took A
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 B
302 has no application and at the most it may be Section 304-A IPC.
5. In response, learned counsel for the respondent 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. C
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 D
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 E
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 F
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 G
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
H
992 SUPREME COURT REPORTS [2007] 11 S.C.R.
-'('- '
A 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
B 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 Halsblll)''s Laws
C 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
D 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
E reasonably foreseen to be likely to cause physical injlll)' 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
F 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
G involve liability as being negligent although in other circumstances
it will not do so. The material considerations are the absence of
.Y-
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
H the two".
NARESHGIRiv. STATE[PASAYAT,J.] 993

9. In this context the following passage from Kenny's Outlines of A i

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 liim as a surprise. The event
may be harmless or harmful, if harmful, the question rises whether B
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 C
must lie where it falls. But ifthe 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 D
...
another is under a legal obligation to make reparation for it to the
victim of the injury who may sue him in tort for dan1ages. But it
should now be recognized that at common law there is no criminal
liability for hann thus caused by inadvertence. This has been laid
down authoritatively for manslaughter again and again. There are E
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 F
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." G

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 ofTorts by H :
994 SUPREME COURT REPORTS (2007] 11 S.C.R.

A 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. Camp/in, (I 978) 2 All ER I 68 it was observed by Lord
Diplock that "the reasonable man" was comparatively late arrival in the
B 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
c to which all men are required to conform.
I I. In Syed Akbar v. State of Karnataka, [I 980] I 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.
D As pointed out by Lord Atkin in Andrews v. Director of Public
Prosecutions, (193 7) 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."
E
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
p 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
G 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:-
H
NARESHGIRiv. STATE[PASAYAT,J.] 995

"Nevertheless, to decide whether someone has been 'reckless', A
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 B
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 c
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. D
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 E
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 F
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 prud~nt individual to the G
possibility that his act was capable of causing the kind of serious
hmmful consequences that the section which creates the offence
was intended to prevent, and that the risk of those harmful
consequences oc~urring was not so slight that an ordinary prudent
individual would feel justified in treating them as negligible. It is only H
996 SUPREME COURT REPORTS · [2007] 11 S.C.R.

A 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".

B 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.
c N.J. Appeal allowed.

. ..

,;..c-