Supreme Court of India
STATE TR. P.S. LODHI COLONY, NEW DELHIversusSANJEEV NANDA
- Citation
- 2012 INSC 320
- Decided
- 3 August 2012
- Disposal
- Case Partly allowed
- Bench
- DEEPAK VERMA
Holding
The accused is guilty of culpable homicide not amounting to murder under Section 304(II) IPC because he had knowledge that his rash and negligent driving while intoxicated was likely to cause death.
Summary
The appellant State prosecuted Sanjeev Nanda for a 1999 hit‑and‑run accident in which six persons died and one was injured after he, allegedly under the influence of alcohol, drove a BMW at high speed and fled the scene. The trial court convicted him under Section 304(II) IPC (culpable homicide not amounting to murder) and sentenced him to five years, while the High Court reduced the conviction to Section 304A IPC (causing death by negligence) and the term to two years. On appeal, the Supreme Court examined whether the accused possessed the requisite knowledge that his rash and negligent act was likely to cause death, the admissibility of hostile witness testimony, and the applicability of statutory breath‑analyzer requirements. Relying on expert evidence of intoxication, the fact that the accused fled without rendering aid, and established legal principles distinguishing Sections 304(II) and 304A, the Court restored the conviction under Section 304(II) IPC. It upheld the two‑year sentence already served and imposed additional orders for compensation and community service.
Issues considered
- The appropriate IPC provision: Section 304(II) versus Section 304A.
- Whether the evidence, including hostile witnesses, establishes the accused's knowledge that his act was likely to cause death.
- Whether the procedural requirements of the Motor Vehicles Act (breath analyser) affect the conviction.
- The adequacy of the sentence and whether enhancement is warranted.
Legislation cited
- Code of Criminal Procedure, 1973s. 193, s. 313, s. 34
- Indian Penal Code, 1860s. 201, s. 304A, s. 304(II), s. 308, s. 34
- Motor Vehicles Act, 1988s. 134, s. 185, s. 187, s. 203, s. 205
Subjects
motor accidenthit and runculpable homicide not amounting to murderSection 304(II) IPCSection 304A IPChostile witnessbreath analyserintoxicationmotor vehicles actcompensationcommunity servicesentencing
Judgment
(2012] 12 S.C.R. 881
STATE TR. P.S. LODHI COLONY, NEW DELHI A
v.
SANJEEV NANDA
(Criminal Appeal No. 1168 of 2012)
AUGUST 3, 2012
B
[DEEPAK VERMA AND K.S. RADHAKRISHNAN, JJ.]
Penal Code, 1860 - s. 304 (Part II) - Motor accident -
Causing death of 6 and injury to one - As per medical
evidence accused-driver under influence of liquor at the time C
of accident - Injured witness and eye-witness turning hostile
- Trial court relying on one other witness convicting the
accused u/s. 304 (Part II) /PC and sentenced him to five years
imprisonment - High Court altered the conviction to that u/s.
304A and reduced the sentence to two years imprisonment D
- In appeal, held: Accused is liable to be convicted u/s. 304
(Part II) as he had sufficient knowledge that his act was likely
to cause death - Sentence awarded by High Court is
maintained - In addition accused is directed to pay Rs. 50
lakhs to the Union Government to be utilized for providing E
compensation to the motor accident victims in hit and run
cases and in default to undergo one year SI; and further
directed to do community service for two years to be arranged
by Ministry of Social Justice and Empowerment and in default
to undergo imprisonment for two years.
F
Witness - Hostile witness - Evidentiary value - Held: If
a witness turns hostile to subvert the judicial process, the
courts should not stand as mute spectators and every effort
should be made to bring home the truth - Criminal judicial
system cannot be overturned by the gullible witnesses who G
act under pressure, inducement and intimidation.
Motor Accident - Hit and run case - Duty of the driver of
881 H
882 SUPREME COURT REPORTS [2012] 12 S.C.R.
A offending vehicle, duty of bystander - Discussed - Motor
Vehicles Act, 1988 - ss. 134 and 187.
The respondent-accused was prosecuted u/ss. 201,
304(1), 308 r/w s. 34 IPC. The prosecution case was that
at about 4.00 a.m. on the day of occurrence, the
8
respondent-accused was driving his car rashly and
negligently at a high speed, hitting seven persons and
thereafter he ran away. In the accident, 6 of the victims
were killed while the 7th victim (PW-2) survived. PW-1
was the eye-witness to the incident. In medical
C examination of the accused, it was found that he had
consumed alcohol the previous night. During trial, eye·
witness as well as the injured witness turned hostile. Trial
court relying on one other witness convicted the
accused uls. 304 (Part II) IPC and imposed upon him a
D jail sentence of five years. In appeal, High Court found the
accused guilty of the offence u/s. 304A IPC and reduced
the sentence to two years. Hence the present appeal.
Partly allowing the appeal,
E
HELD:
Per Court:
1. The judgment and order of conviction passed by
F the High Court u/s.304A IPC is set aside and the order of
conviction of trial court u/s. 304 (Part II) l.P.C. is restored
and upheld. However, it is appropriate to maintain the
sentence awarded by the High Court, which the accused
has already undergone. [Para 3] [946-C]
G 2. In addition, the accused is put to the following
terms: (1) Accused has to pay an amount of Rs.50 lakhs
(Rupees Fifty lakhs) to the Union of India within six
months, which will be utilized for providing compensation
to the victim of motor accidents, where the vehicle owner,
H
STATE TR. P.S. LODHI COLONY NEW DELHI v. 883
SANJEEV NANDA
driver etc. could not be traced, like victims of hit and run A
cases. On default, he will have to undergo simple
imprisonment for one year. This amount would be kept
in a different head to be used for the aforesaid purpose
only. (2). The accused would do community service for
two years which will be arranged by the Ministry of Social B
Justice and Empowerment within two months. On
default, he will have to undergo simple imprisonment for
two years. [Para 4] [946-D-G]
PER DEEPAK VERMA, J:
c
HELD: 1.1 Accident means an unintended and
unforeseen injurious occurrence; something that does
not occur in the usual course of events or that could not
be reasonably anticipated. Thus, if the injury/death is
caused by an accident, that itself cannot be attributed to D
an intention. If inteRtion is proved and death is caused,
then it would amount to culpable homicide. [Para 33) [940-
G-H; 941-A]
Black's Law Dictionary - referred to.
E
1.2. In the case at hand, looking to the nature and
manner in which accident had taken place, it can safely
be held that respondent-accused had no intention to
cause death but certainly had the knowledge that his act
may result in death. There is nothing to prove that he knew F
that a group of persons was standing on the road he was
going to pass through. If that be so, there cannot be an
intention to cause death or such bodily injury as is likely
to cause death. Thus, respondent had committed an
offence u/s.304 (Part II) IPC. [Paras 39 and 40] [944-E-H) G
Ku/want Rai vs. State of Punjab (1981) 4 SCC 245;
Dalbir Singh vs. State of Haryana (2000) 5 SCC 82: 2000 (3)
SCR 1000; State of Maharashtra vs. Salman Salim Khan
(2004) 1 SCC 525; Alister Anthony Pareira vs. State of H
884 SUPREME COURT REPORTS [2012] 12 S.C.R.
A Maharashtra (2012) 2 SCC 648; State of Gujarat vs. Haiderali
Kalubhai (1976) 1 SCC 889: 1976 (3) SCR 303; Naresh Giri
vs. State of M.P 2008 (1) sec 791: 2001 (11) SCR 987 -
referred to.
8 1.3. The accident had occurred solely and wholly on
account of rash and negligent driving of BMW car by the
respondent, at a high speed, who was also intoxicated
at that point of time. This fact has been admitted by the
respondent-accused at the appellate stage in the High
C Court. For the simple reason that he had already driven
almost 16 kms from the place where he had started, to
the point where he actually met with the accident without
encountering any untoward incident would not go
absolutely in favour of the respondent. There is no
evidence on record that he had consumed. more liquor
D on their way also. It is extremely difficult to assess or
judge when liquor would show its effect or would be at
its peak. It varies from person to person. The prosecution
failed to use either the Breath Analyser or Alco Meter to
record a definite finding in this regard. Evidence of the
E doctors P.W.10 and P.W.16 shows that certain amount of
alcoholic contents was still found on examination of his
blood next day. It is a settled principle of law that if
something is required to be done in a particular manner,
then that has to be done only in that way or not at all.
F [Paras 26, 27, 28 and 29] [938-G-H; 939-A-G]
Nazir Ahmad v. King Emperor AIR 1936 PC 253 (2) -
referred to.
1.4. Soon after hitting one of the victims, accused did
G not apply the brakes so as to save at least some of the
lives. Since all the seven of them were standing in a
group, he had not realized that impact would be so
severe that they would be dragged for several feet.
Possibility also cannot be ruled out that soon after hitting
H
STATE TR. P.S. LODHI COLONY NEW DELHI v. 885
SANJEEV NANDA
them, respondent, a young boy of 21 years then, might A
have gone into trauma and could not decide as to what
to do until vehicle came to a halt. He must have then
realized the blunder he committed. [Para 31] [940-C-D]
2. Even though in the facts and circumstances of the B
case, jail sentence awarded to him may not be just and
appropriate the mitigating circumstances tilt heavily in
favour of the accused. Therefore, it is appropriate, to
maintain the sentence awarded by the High Court, which
he has already undergone. No useful purpose would be
served by sending the accused to jail once again. C
However, this has been held so, looking to very peculiar
facts and features of this particular case and it may not be
treated as a precedent of general proposition of law on
the point, for other cases. [Paras 44 and 45] [945-D-G]
D
PER K.S. RADHAKRISHNAN, J. (Partly dissenting and
Supplementing!:
HELD: 1.1. Section 304A IPC carves out a specific
offence where death is caused by doing a rash or E
negligent act and that act does not amount to culpable
homicide not amounting to murder u/s. 299 IPC or murder
u/s. 300 IPC. Section 304A excludes all the ingredients of
Section 299 or Section 300. [Para 44] [919-A]
State of Gujarat v. Haidara/i Ka/ubhai (1976) 1 SCC 889: F
1976 (3) SCR 303; Naresh Giri v. State of M.P. (2008) 1 SCC
791: 2007 (11) SCR 987; Alister Anthony Pareira v. State of
Maharashtra (2012) 2 SCC 648; Jagriti Devi v. State of
Himacha/ Pradesh (2009) 14 SCC 771: 2009 (10) SCR 167
- relied on. G
Andhra Pradesh v. Rayavarapu Punnayya and Anr.
(1976) 4 SCC 382: 1977 (1) SCR 601 - referred to.
1.2. In the instant case, it has been brought out in
evidence that the accused-respondent was in an H
886 SUPREME COURT REPORTS [2012] 12 S.C.R.
A inebriated state, after consuming excessive alcohol, he
was driving the vehicle without licence, in a rash and
negligent manner in a high speed which resulted in the
death of six persons. The accused had sufficient
knowledge that his action was likely to cause death and
B such an action would, in the facts and circumstances of
this case fall under Section 304(11) of the IPC and the trial
court has rightly held so and the High Court has
committed an error in converting the offence to Section
304A of the IPC. [Para 52] [925-A-B]
c 2.1. The key prosecution witnesses PW1, PW2 and
PW3 turned hostile. Even though the above mentioned
witnesses turned hostile and PW3 was later examined as
court witness, when their evidence is read with the
D evidence of others as disclosed and expert evidence, the
guilt of the accused had been clearly established. [Para
39) [916-B-C]
2.2. Witness turning hostile is a major disturbing
factor faced by the criminal courts in India. Reasons are
E many for the witnesses turning hostile, but especially in
high profile cases, there is a regularity in the witnesses
turning hostile, either due to monetary consideration or
by other tempting offers which undermine the entire
criminal justice system and people carry the impression
F that the mighty and powerful can always get away from
the clutches of law thereby, eroding people's faith in the
system. The evidence of hostile witness could not be
totally rejected, if spoken in favour of the prosecution or
the accused, but it can be subjected to closest scrutiny
G and that portion of the evidence which is consistent with
the case of the prosecution or defence may be accepted.
If a court finds that in the process, the credit of the
witness has not been completely shaken, he may after
reading and considering the evidence of the witness as
H a whole with due caution, accept, in the light of the
STATE TR. P.S. LODHI COLONY NEW DELHI v. 887
SANJEEV NANDA
evidence on the record that part of his testimony which A
it finds to be creditworthy and act upon it. This is exactly
what was done in the instant case by both the trial court
and the High Court and they found the accused guilty.
[Para 40] [916-E-H; 917-A-B]
8
State of U.P. v. Ramesh Mishra and Anr. AIR 1996 SC
2766: 1996 (4) Suppl. SCR 631; K. Anbazhagan v.
Superintendent of Police and Anr. AIR 2004 SC 524: 2003
(5) Suppl. SCR 610 - relied on.
2.3. In the instant case even the injured witness, who C
was present on the spot, turned hostile. If a witness
becomes hostile to subvert the judicial process, the
courts shall not stand as a mute spectator and every
effort should be made to bring home the truth. Criminal
judicial system cannot be overturned by those gullible D
witnesses who act under pressure, inducement or
intimidation. Further, Section 193 IPC imposes
punishment for giving false evidence but is seldom
invoked. [Para 41] [917-8-E]
E
Sidharlha Vashisht @ Manu Sharma v. State (NCT of
Delhi) (2010) 6 SCC 1: 2010 (4) SCR 103; Zahira Habibullah
Shaikh v. State of Gujarat AIR 2006 SC 1367: 2006 (2) SCR
1081 - relied on.
3.1. The plea that if a particular procedure has been F
prescribed u/ss.185 and 203 of Motor Vehicles Act, 1988,
then that procedure has to be followed, has no application
to the facts of this case. Cumulative effect of the
provisions of ss. 185, 203 and 205 of the Act would
indicate that the. Breath Analyzer Test has a different G
purpose and object. The language of the above Sections
would indicate that the said test is required to be carried
out only when the person is driving or attempting to drive
the vehicle. The expressions "while driving" and
"attempting to drive" in the above Sections have a H
888 SUPREME COURT REPORTS [2012] 12 S.C.R.
A meaning "in praesentr. In such situations, the presence
of alcohol in the blood has to be determined instantly so
that the offender may be prosecuted for drunken driving.
A Breath Analyzer Test is applied in such situations so
that the alcohol content in the blood can be detected. The
B breath analyzer test could not have been applied in the
present case since the accused had escaped from the
scene of the accident and there was no question .of
subjecting him to a breath analyzer test instantaneously.
The first accused was taken to the hospital at 12.29 PM
C on the next day of the incident, when his blood sample
was taken by the Scientific Officer (PW16). While testing
the alcohol content in the blood, she noticed the
presence of 0.115% weight/volume ethyl alcohol. The
report exhibited as PW16/A was duly proved by the
Doctor. Over and above, in her cross-examination, she
D had explained that 0.115% would be equivalent to 115 mg
per 100 ml of blood and deposed that as per traffic rules,
if the person is under the influence of liquor and alcohol
content in blood exceeds 30 mg per 100 ml of blood, the
person is said to have committed the offence of drunken
E driving. Evidence of the experts clearly indicates the
presence of alcohol in blood of the accused beyond the
permissible limit, that was the finding recorded by the
courts below. [Paras 26 and 28] [908-A-F; 909-A·B]
F 3.2. The plea that the accused was coming from a
distance of 16 kms. before the accident, causing no
untoward incident and hence it is to be presumed that he
was in a normal state of mind is not relevant for the
present case. First of all, that statement is not supported
G by evidence apart from the assertion of the accused.
Assuming so, it is a weak defence, once it is proved that
the person had consumed liquor beyond the prescribed
limit on scientific evidence. [Para 29] [909-C-D]
Kurban Hussain v. State AIR 1965 SC 1616: 1965 SCR
H 622 - relied on.
STATE TR. P.S. LODHI COLONY NEW DELHI v. 889
SANJEEV NANDA
3.3. The plea that the accused was not under the A
influence of liquor or beyond the limit prescribed under
the Motor Vehicle Act and he was in his senses and the
victims were at fault being on the middle of the road, is
without any substance and only to be rejected. [Para 31]
[910-B·C] B
3.4. The plea of fog, even if its presence had been
established, would only weaken the defence case and
the trial court and the High Court had rightly rejected that
plea. Even going by the evidence of PW15 (Director of
Metrological Department) and also the report exhibited as c
PW 15/B, there is nothing to show the presence of fog
on the spot of the accident. Report of PW-15 stated that
·the sky was mainly clear and there was no mention of the
presence of mist or fog at the spot in the report. The
visibility of 100 m of clear sky was reported by PW 15 in
0
exhibit 15/B which would demolish the theory of fog at
the spot of the accident and poor visibility. Assuming that
· there was presence of fog, it was the duty of the accused
either to stop the vehicle if the visibility was poor or he
should have been more cautious and driven the vehicle
carefully in a lesser speed so that it would not have E
blurred his vision. This never happened since the
accused was in an inebriated state and the fact that six
persons died practically on the spot would indicate that
the vehicle was driven in a rash and negligent manner at
an excessive speed. [Para 33] [910-G-H; 911-A·C] F
3.5. Admittedly, the first accused was not having an
Indian driving licence at the time of accident, though he
had produced a licence issued by the Licencing
Authority from a State in the United States. An inference
is drawn that the accused was not conversant in driving G
a vehicle on the Indian roads in the absence of an Indian
licence at the time of the accident. In any view, since the
accused was in an inebriated state, therefore, the
question whether he knew driving is not of much
consequence. [Para 35] [911-G-H; 912-A-C-E] H
890 SL!f'REME COURT REPORTS [2012] 12 S.C.R.
A Su/eman Rahiman Mu/ani and Anr. v. State of
Maharashtra AIR 1968 SC 829: 1968 SCR 515 -
distinguished.
4.1. Generally, the policy which the court adopts
B while awarding sentence is that the punishment must be
appropriate and proportional to the gravity of the offence
committed. Law demands that the offender should be
adequately punished for the crime, so that it can deter the
offender and other persons from committing similar
offences. Nature and circumstances of the offence; the
C need for the sentence imposed to reflect the seriousness
of the offence; to afford adequate deterrence to the
conduct and to protect the public from such crimes are
certain factors to be considered while imposing the
sentence. [Para 57] [927-E-G]
D
4.2. The imposition of sentence without considering
its effect on the social order in many cases is in reality a
futile exercise. Had the accused extended a helping
hand to the victims of the accident, caused by him by
E making arrangements to give immediate medical
attention, perhaps lives of some of the victims could have
been saved. Even after committing the accident, he only
thought of his safety, did not care for the victims and
escaped from the site showing least concern to the
F human beings lying on the road with serious injuries.
Conduct of the accused is highly reprehensible and
cannot be countenanced, by any court of law. [Para 58]
[927-G-H; 928-A-B]
'
4.3. Convicts in various countries, now, voluntarily
G come forward to serve the community, especially In
crimes relating to motor vehicles. Graver the crime
greater the sentence. But, serving the society actually Is
not a punishment in the real sense where the convicts
pay back to the community which he owes. Conduct of
H the convicts will not only be appreciated by the
STATE TR. P.S. LODHI COLONY NEW DELHI v. 891
SANJEEV NANDA
community, it will also give a lot of solace to him, A
especially in a case where because of one's action and
inaction, human lives have been lost. In the facts and
circumstances of the case, where six human lives were
lost, adoption of this method would be good for the
society rather than incarcerating the convict further in jail. B
Further sentence of fine also would compensate at least
some of the victims of such road accidents who have
died, especially in hit and run cases where the owner or
driver cannot be traced. Therefore, it is ordered that the
accused has to pay an amount of Rs.50 lakh (Rupees c
Fifty lakh) to the Union of India within six months, which
will be utilized for providing compensation to the victim
of motor accidents, where the vehicle owner, driver etc.
could not be traced, like victims of hit and run cases. On
default, he will have to undergo simple imprisonment for D
one year. This amount be kept in a different head to be
used for the aforesaid purpose only. It is also ordered
that the accused would do community service for two
years which will be arranged by the Ministry of Social
Justice and Empowerment within two months. On
default, he will have to undergo simple imprisonment for E
two years. [Paras 60 and 61] [928-D-H; 929-A-C]
5.1. Section 134 of Motor Vehicles Act, 1988 casts a
duty on a driver to take reasonable steps to secure
medical attention for the-injured person. Section 187 of F
the Act provides for punishment relating to accident. The
accused had never extended any helping hand to the
victims lying on the road and fled from the scene. No
proceedings were instituted against the accused in the
case on hand invoking the above mentioned provisions. G
[Para 36] [912-F-G; 914-A-D]
Pt. Parmanand Katara v. Union of India (UO/) and
Ors. (1989) 4 sec 286: 1989 (3) SCR 997 - relied on.
5.2. No legal obligation as such is cast on a H
892 SUPREME COURT REPORTS [2012) 12 S.C.R.
A bystander either under the Motor Vehicle Act or any other
legislation in India. But greater responsibility is cast on
them, because they are people at the scene of the
occurrence, and immediate and prompt medical attention
and care may help the victims and their dear ones from
B unexpected catastrophe. Private hospitals and
government hospitals, especially situated near the
Highway, where traffic is high, should be equipped with
all facilities to meet such emergency situations.
Ambulance with all medical facilities including doctors
c and supporting staff should be ready, so that, in case of
emergency, prompt and immediate medical attention
could be given. [Para 37] (915-A-C]
5.3. This Court in *Paschim Banga Khet Mazdoor Samiti
gave various directions to the Union of India and other
D States to ensure immediate medical attention in such
si.tuations and to provide immediate treatment to. save
human lives. Law Commission in its 201st report dated
31.8.2006 had also made various recommendations,. but
effective and proper steps are yet to be taken by Union
E of India and also many State Governments. Immediate
attention of the Union of India and other State
Governments, is called upon if they have not already
implemented those directions, which they may do at the
earliest. [Para 37] (915-C-F]
F
*Paschim Banga Khet Mazdoor Samiti and Ors. v. State
of West Bengal and Ors. (1996) 4 SCC 37: 1996 (2) Suppl.
SCR 331 - relied on.
5.4. Proper attention by the passing vehicles will also
G be of a great help and can save human lives. Many a
times, bystanders keep away from the scene, perhaps
not to get themselves involved in any legal or court
proceedings. Good Samaritans who come forward to
help must be treated with respect and be assured that
H they will have to face no hassle and will be properly
STATE TR. P.S. LODHI COLONY NEW DELHI v. 893
SANJEEV NANDA
rewarded. Therefore, the Union of India and State A
Governments are directed to frame proper rules and
regulations and conduct awareness programmes so that
the situation like this could, to a large extent, be properly
attended to and, in that process, huma_n lives could be
saved. [Para 38] [915-G-H; 916-A-B] B
Case Law Refe.rence:
In the judgment of Deepak Verma, J.
(1981) 4 sec 245 Referred to Para 25 c
2000 (3) SCR 1000 Referred to Para 25
(2004) 1 sec 525 Referred to Para 25
(2012) 2 sec 648 Referred to Para 25
D
AIR 1936 PC 253 (2) Referred to Para 29
1976 (3) SCR 303 Referred to Para 34
2007 (11) SCR 987 Referred to Para 34
E
In the Judgment of K.S. Radhakrishnan. J.:
1965 SCR 622 Relied on Para 29
1968 SCR 515 Distinguished Para 35
1989 (3) SCR 997 Relied on Para 36 F
1996 (2) Suppl. SCR 331 Relied on Para 37
1996 (4) Suppl. SCR 631 Relied on Para 40
2003 (5) Suppl. SCR 610 Relied on Para 40 G
2010 (4) SCR 103 Relied on Para 41
2006 (2) SCR 1081 Relied on Para 41
1976 (3) SCR 303 Relied on Para 45
H
894 SUPREME COURT REPORTS [2012) 12 S.C.R.
A 2007 (11) SCR 987 Relied on Para 47
(2012) 2 sec 648 Relied on Para 48
2009 (10) SCR 167 Relied on Para 49
1977 (1) SCR 601 Referred to Para 50
B
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1168 of 2012.
From the Judgment & Order dated 20.7.2009 of the High
c Court of Delhi at New Delhi in Criminal Appeal No. 807 of
2008.
Sidharth S. Dave, Anil Katiyar for the Appellant.
Ram Jethmalani, Lata Krishnamurti, R.N. Karanjawala,
D Manik Karanjawala, Sandeep Kapur, Ravi Sharma (for
Karanjawala & Co.,) for the Respondent.
The Judgments & Order of the Court was delivered by
K.S. RADHAKRISHNAN, J,
E
Delay condoned.
Leave granted.
1. I had the benefit and privilege of carefully considering
F the judgment delivered by my esteemed brother. However, I
find it difficult to agree with some of the findings and
observations recorded therein, even though I agree with most
of the major conclusions, however, with a caveat. I, therefore,
deem it fit and proper to supplement it with few suggestions
G and directions.
2. Facts have been meticulously and concisely dealt with
by my learned Brother and I do not want to burden my judgment
with those voluminous facts which find a place in the judgment
H of the trial court as well as the High Court.
STATE TR. P.S. LODHI COLONY NEW DELHI v. 895
SANJEEV NANDA [K.S. RADHAKRISHNAN, J.]
3. The controversy in this case had been considerably A
narrowed down since learned senior counsel appearing for the
accused - Sanjeev Nanda admitted that it was he, who was
· driving the BMW car bearing registration No. M-312 LYP in the
early hours of 10.01.1999, which resulted in the death of six
persons, leaving another injured. Admission was made after B
a prolonged trial, spanning over a period of nine years, that too
after the trial court, appreciating the oral and documentary
evidence adduced by the prosecution and defence, came to
the conclusion that he was guilty and convicted him for the
offence under Section 304(11) of the IPC and sentenced him to c
undergo rigorous imprisonment for five years.
4. The accident had occurred in early hours of 10.01.1999
near the Car Care Centre, Lodhi Road. Charges were framed
against the first accused and others on 08.04.1999. Charges
under Sections 338, 304 of the IPC were framed against the D
first accused - Sanjeev Nanda and another for causing death
of six persons and for attempting to commit culpable homicide
not amounting to murder of Manoj Malik. Another charge was
also framed under Section 201 /34 against the first accused and
two others for fleeing away from the spot with the intention to E
screen themselves from legal punishment.
5. We are in this case primarily concerned with the charge
against Sanjeev Nanda - the first accused. Prosecution in
order to establish the guilt examined 61 witnesses, of which F
Sunil Kulkarni was given up by the prosecution and was
examined as a court witness. Upon completion of the
prosecution evidence, accused persons were questioned and
statements of the accused persons were recorded under
Section 313 of the Cr.P.C. On the side of the accused, DW1 G
to DW9 were examined. Documentary evidences such as FSL
report exhibited as P16/A etc. were also produced. The trial
court vide judgment dated 02.09.2008, as already stated, found
the first accused guilty under Section 304(11) of the IPC and
awarded the sentence of five years rigorous imprisonment.
H
896 SUPREME COURT REPORTS (2012] 12 S.C.R.
A 6. Aggrieved by the judgment of the trial court, the first
accused filed Criminal Appeal No. 807 of 2008 before the High
Court and the High Court after examining the contentions of the
parties converted the conviction from Section 304(11) to Section
304A of the IPC and reduced the sentence to two years. The
B accused had already undergone the punishment awarded by
the High Court and no appeal was preferred by him against the
judgment of the High Court or the findings recorded by the High
Court. The present appeal has been preferred by the State
contending that the High Court has committed an error in
c converting the conviction from Section 304(11) to Section 304A
of the IPC considering the seriousness of charges proved and
the gravity of the offence.
7. Shri Harin P. Raval, Additional Solicitor General
appearing for the State, submitted that in the facts and
D circumstances of the case, the High Court was not justified in
converting the conviction from Section 304(11) to 304A of the
IPC, raising various grounds. Learned ASG submitted that the
High Court had misdirected itself in concluding that the facts
of the case would not attract 304(11) of the IPC. Shri Raval
E submitted that it was the first accused who had driven the
vehicle on a high speed after consuming liquor and that too
without a licence, causing death of six persons and injuring one,
leaving them unattended. Learned ASG further submitted that
the gravity of the offence was of such a nature that ii is touching
F the boundaries of Section 300(4) of the IPC. Further, it was
also pointed out by Shri Raval that the knowledge of the second
degree comprehended from Part-Ill of Section 299 of the IPC,
where death is caused by the offender by an act which offender
knows is likely to cause death, would be attracted. Reference
G was made to the judgments of this Court in State of Gujarat v.
Haidarali Ka/ubhai (1976) 1 SCC 889, Ku/want Rai v. State
of Punjab (1981) 4 SCC 245, State of Maharashtra v. Salman
Salim Khan & Another (2004) 1 SCC 525 and Alister Anthony
Pareira v. State of Maharashtra (2012) 2 SCC 648. Learned
H counsel referred to the oral and documentary evidence, the
STATE TR. P.S. LODHI COLONY NEW DELHI v. 897
SANJEEV NANDA [K.S. RADHAKRISHNAN, J.]
scene of crime as narrated by Kailash Chand, S.I. in Rukka, A
as well as site plan and submitted that the scene of occurrence,
which was horrifying, clearly indicates beyond doubt, that the
accused had knowledge that the persons who were hit by the
car might die but left the scene of occurrence without caring
for human lives. B
8. Shri Raval also extensively referred to the oral and
documentary evidence adduced in this case and submitted that
the trial court as well as the High Court had concurred in finding
that it was the accused who had committed the offence over
and above admission of the first accused. Prosecution case, C
it was pointed out, mainly rested on the oral evidence of PW1
- Hari Shankar, an employee of petrol pump, PW2- Manoj
Malik, injured and an employee of a hotel and PW3 - Sunil
Kulkarni, the court witness though, given up by the prosecution.'
Further, Shri Raval submitted that the evidence of all these D
witnesses, though turned hostile, have to be appreciated in the
light of the peculiar facts and circumstances of this case and
also taking note of the admission of the first accused that it was
he who had driven the vehicle on the fateful day. Learned
Counsel also submitted that the court should appreciate the E
circumstance under which most of the prosecution witnesses
turned hostile and the incidents which led to the judgment of
this Court in R.K. Anand it. Registrar, Delhi High Court [(2009)
8 sec 106] cannot be lost.sight of, which revealed the unholy
alliance, then defence counsel. had with the special public F
prosecutor for subverting the criminal trial of this case. PW2,
who got injured in the accident, turned ho!!tile so as to subvert
trial. Evidently, all these were done at the behest of the accused
though the prosecution was successful in bringing home the
guilt of the accused, as found by the courts below. G
9. Shri Raval submitted that since learned counsel for the
accused had admitted that it was the first accused who was
driving the vehicle on the fateful day resulting in the death of
six persons, the only question that remains to be considered H
898 SUPREME COURT REPORTS [2012) 12 S.C.R.
A is whether the accused deserves proper punishment for the
offence committed under Section 304(11) of the IPC or whether
the conviction or sentence awarded by the High Court under
Section 304A of the IPC would be inadequate punishment, so
far as the facts and circumstances of this case are concerned.
B Shri Raval submitted that the accused deserves harsher
punishment, as rightly held by the trial court considering the fact
that he was driving the vehicle in an inebriated state, without
licence and that he had left the scene of occurrence without
extending any helping hand to the victims either by taking them
c to the hospital or reporting the accident to the police at the
earliest point of time. Shri Raval placed considerable reliance
on the evidence of PW-16 and the FSL report proved on record
as Exhibit 16/A and pointed out that the report indicated the
presence of 0.115% alcohol in the blood sample of the accused.
Shri Raval submitted that the High Court had correctly
0
understood the scope and ambit of Section 185 of the Motor
Vehicles Act r/w Section 203 of the Act and came to a correct
conclusion that the presence of 0.115% alcohol was much
above the limit of 30mg prescribed under the Motor Vehicles
E Act and it can definitely affect the ability to drive the vehicle in
a normal manner.
10. Shri Raval also submitted that the fog and lack of
visibility on the site projected by the counsel for the accused
was rightly rejected by the High Court. Learned counsel pointed
F out that this argument was neither raised before the trial court
nor in the grounds of appeal taken before the High Court.
Further, PW 15 - Dr. S.C. Gupta's report had not stated the
presence of fog on the site of the accident. On the other hand,
PW15 stated that the sky was clear and the mention of mist in
G the report was of no consequence. Shri Raval submitted that
the car was coming in a high speed and considering the fact
that there was clear visibility, the only conclusion possible was
that the accused was in a drunken state and nobody knew
whether he had driven the car 16 kms prior to the accident.
H Shri Raval, therefore submitted that the High Court was not
STATE TR. P.S. LODHI COLONY NEW DELHI v. 899
SANJEEV NANDA [K.S. RADHAKRISHNAN, J.)
justified in holding that the offence will attract Section 304A of A
the IPC and not 304 (II) of the IPC.
11. Shri Ram Jethmalani, learned senior counsel
appearing for the respondent - accused, submitted that the
accused had already undergone the sentence awarded by the
8
High Court and since no sufficient grounds have been made
by the prosecution to upset the conclusion reached by the High
Court that in the facts and circumstances of the case, the
offence will fall only under Section 304A of the IPC. Learned
senior counsel submitted that the accused had admitted the
factum of the accident that, he was driving the vehicle on the C
morning hours of 10.01.1999 so as to give a quietus to the
entire controversy and to purchase peace for the accused, who
had undergone agony of the criminal trial for over a decade.
12. Learned senior counsel submitted, the factum of D
admission made by the accused in this regard cannot be put
against him or prejudice the court in appreciating various
contentions raised in defending his case. Shri Jethmalani,
learned senior counsel, submitted, though the accident had
occurred in the morning hours of 10.01.1999, .the trial was E
prolonged due to various reasons - mainly due to the lethargic
attitude of the prosecution and also due to the delay in the court
proceedings which cannot be put against the accused. Further,
he had already undergone the sentence of two years awarded
by the High Court and subsequently he got married and has F
also been blessed with a daughter and it will be too harsh to
punish him with imprisonment for a further term.
13. Learned senior counsel also pointed out his behavior
and conduct in jail was also well-acknowledged and he has also
not been involved in any criminal offence subsequently. Further, G
the families of the victims were adequately compensated in
monetary terms and he was only 21 years on the date of the
incident. These factors according to the learned senior counsel
should weigh with the court and the appeal be not entertained.
Learned senior counsel also attacked the various findings H
900
.
SUPREME COURT REPORTS [2012] 12 S.C.R.
A recorded by the High Court and pointed out that since the
accused had already undergone the punishment, no appeal was
preferred in challenging those findings and in case where the
State is seeking enhancement of the punishment, the accused
can always raise his defence against various grounds raised
8 by the prosecution in the appeal, since the appeal is only the
continuation of the trial.
14. Learned senior counsel pointed various instances of
judicial unfairness meted out to the respondent. Reference was
made to the evidence of Sunil Kulkarni - the court witness.
C Learned senior counsel pointed out free and fair trial is sine
qua non of Article 21 of the Constitution of India, which was
denied to the accused in the instant case. In support of his
contention regarding unfair trial, reference was made to the
judgment in Jamaica (Constitutional) Order as referred in
D Herbert Bell v. Director of Public Prosecutions & Anr. [(1985)
A.C. 937], Datar Singh v. State of Punjab [(1975) 4 SCC 272],
Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC
116] and Chandran@ Surendran and Anr. v. State of Kera/a
[1991 Supp(1) SCC 39]. Learned senior counsel also pointed
E out that the judgment in R.K. Anand (supra) had also influenced
the judicial mind, especially that of the trial judge and that the
High Court has rightly converted the conviction from Section
304(11) of the IPC to Section 304A of the IPC and that the
accused had undergone the punishment.
F 15. Learned senior counsel also submitted that the
prosecution had committed a grave error in suppressing the
PCR messages which were of great significance for the
accused to prove his defence. PW2, one of the victims of the
accident who was in the Jeep, also disclosed various facts
G which were suppressed by the prosecution. Learned senior
counsel also pointed out Kulkarni was a totally unreliable
witness and the statements made by him were given
importance by the trial court as well as the High Court in
reaching various conclusions against the accused.
H
STATE TR. P.S. LODHI COLONY NEW DELHI v. 901
SANJEEV NANDA [K.S. RADHAKRISHNAN, J.]
16. Shri Jethmalani submitted there is no evidence on A
record to prove that the accused was intoxicated in the sense
in which intoxication was understood under Section 85 of the
IPC nor in the sense of his ability to control the motor vehicle
being substantially impaired as a result of consuming alcohol
as laid down by Section 185(1) of the fl!l.V. Act. Further, it was B
also pointed that the test statutorily recognized for drunken
driving is the breath analyzer test for drunken driving and the
accused was not subjected to that test. Learned counsel has
submitted that when a statute prescribes a particular method
the prosecution has to follow that method and not any other c
method. Reliance was placed on the judgments of the House
of Lords in Rowlands v. Hamilton [(1971) 1 All E.R. 1089],
Gumb/ey v. Cunningham [(1989) 1 All E.R. 5], and judgments
of the Privy Council in Nazir Ahmad v. Emperor [AIR 1936 PC
253], State of Uttar Pradesh v. Singhara Singh and Ors. [AIR D
1964 SC 358].
17. Learned senior counsel also submitted that no reliance
could be placed on the evidence tendered by PW-16 - Dr.
Madhulika Sharma, Senior Scientific Officer as well as the
evidence of PW10 - Dr. T. Milo and submitted that there is E
nothing to show the vehicle was driven in a reckless or negligent
manner so as to infer that the accused was drunk. On the other
hand, learned senior counsel pointed out that the accused could
not have avoided the accident since policemen and others were
standing on the middle of the road on a foggy day when the F
visibility was poor. Further, it was pointed out that the accused
had driven car about 16 kms before the accident without any
untoward incident, which would indicate that, his condition was
stable and he had not consumed liquor beyond the prescribed
lim~. G
18. Learned senior counsel also submitted that the
evidence of PW 15 - Dr. S.C. Gupta was also not properly
appreciated by the courts below, so also the evidence tendered
on the presence of fog. The presence of fog, according to the
learned senior counsel, clearly restricted the visibility and the H
902 SUPREME COURT REPORTS (2012] 12 S.C.R.
A entire fault cannot be put on the accused. Reference was also
made to the evidence of PW2 on the presence of fog on the
morning of 10.01.1999. On the plea of excessive speed,
learned senior counsel submitted, assuming it was so, that itself
would not establish that the accused was negligent or rash, at
B the most, there was gross negligence. Reference was made
to the judgment of this Court in State of Karnataka v. Satish
[(1998) a sec 493J.
19. Learned senior counsel submitted, in the facts and
C circumstances of the case, no knowledge could be attributed
to the accused since there was nothing to show that the
accused had the intention to commit the offence, nor any
knowledge can be attributed to him and even if it is assumed
that he was negligent or rash, only section 304A of the IPC
would apply and not 304(11) of the IPC. The judgment of this
D Court in Alister Anthony Pareira (supra), according to learned
senior counsel, requires reconsideration. Learned senior
counsel also submitted that the judgment of this Court in
Haidara/i Kalubhai (supra) would not apply to the facts of this
case.
E
20. We may at the outset point out that both the trial court
and High Court, on appreciation of oral and documentary
evidence, came to the clear finding that it was the accused who
had driven the BMW car at the early hours of 10.01.1999 - the
F day on which six human lives were lost due to the rash and
negligent act of the first accused, leaving another person injured.
The facts and circumstances of the case according to the trial
court, as already indicated, would attract conviction under
Section 304(11) of the IPC but the High Court converted the
same to Section 304A of the IPC, the correctness of which is
G the main issue that falls for consideration. We have to first
examine whether any prejudice had been caused to the first
accused due to the alleged unfair and delayed trial as
contended and who was primarily instrumental for the delay in
completion of the trial and also whether any injustice had been
H caused to the accused due to the alleged judicial unfairness.
STATE TR. P.S. LODHI COLONY NEW DELHI v. 903
SANJEEV NANDA [K.S. RADHAKRISHNAN, J.]
21. The incident had occurred on 10.01.1999 and charge- A
sheet against the accused was filed on 08.04.1999. Sixty one
witnesses were examined on the side of the prosecution and
nine witnesses were examined on the side of the defence and
a large number of documents were produced including expert
evidence before the trial court and the court finally rendered its B
judgment on 02.09.2008. When the trial was on, the part played
by Sunil Kulkarni, one of the eye witnesses, who later turned
hostile and the unholy alliance he had with the defence counsel
etc. were also adversely commented upon by this court in R.K.
Anand case (supra). The operative portion of which reads as c
follows:
"Before laying down the records of the case we must also
advert to another issue of great importance that causes
grave concern to this Court. At the root of this odious affair
is the way the BMW trial was allowed to be constantly D
interfered with till it almost became directionless."
Further, the court held as follows:
"Every trial that fails due to external interference is a E
tragedy for the victim(s) of the crime. More importantly,
every frustrated trial defies and mocks the society based
on the rule of law. Every subverted trial leaves a scar on
the criminal justice system. Repeated scars make the
system unrecognisable and it then loses the trust and F
confidence of the people."
22. We do not want to delve much into the background
facts in R.K. Anand (supra) any further, but only to put a
question, but for the accused for whose benef•tne entire drama
was played by Anand and Sunil Kulkarni. We have referred to G
the above judgment since an argument was raised by Shri Ram
Jethmalani on the right of the accused for speedy trial and on
judicial unfairness. Had the first accused been honest enough
and wanted early disposal of the trial, he would have come out
with the truth at the earliest opportunity. Only after a protracted H
904 SUPREME COURT REPORTS [2012] 12 S.C.R.
A trial that too after examining sixty one witnesses and producing
and proving a host of documents and after having been found
guilty and convicted under Section 304(11) of the IPC and
sentenced to five years rigorous imprisonment. wisdom
dawned on the accused, that too, at the appellate stage.
B Learned senior counsel for the accused before the High Court
then submitted that to narrow down the controversy, the
accused is admitting the factum of the accident and that he was
driving the BMW on the fateful morning of 10.01.1999. The High
Court recorded the same as follows:
c "As already noticed, to narrow down the controversy, Mr.
Ram Jethmalani very fairly conceded at the threshold of
the arguments that he would proceed in the matter by
admitting the factum of the accident and the appellant
being on the driver seat on the fateful morning of 10th
D January, 1999, when the horrifying incident had taken
place. This admission on the part of the counsel for the
appellant would mean that the appellant gives up his right
to challenge the findings of the Lower Court so far as the
factum of accident by the appellant while driving BMW car
E bearing registration No. M312LYP resulted in death of six
persons and injury to one person on the morning of 10th
January, 1999 near Car Care Centre petrol pump at Lodhi
Road is concerned, despite the fact that several
contentions have been raised by the appellant denying his
F involvement in the accident in the grounds of appeal."
23. Shri Ram Jethmalani, as already pointed out, submitted
that the first accused was seriously prejudiced due to the unfair
and delayed trial, which was also commented upon by the High
G Court which reads as follows:
"In any event of the matter, the appellant himself must share
the burden of causing delay in the matter as with a view
to hoodwink the prosecution and to escape from the
clutches of law, he denied the factum of accident. It is only
H at the stage of final arguments before the trial court and in
STATE TR. P.S. LODHI COLONY NEW DELHI v. 905
SANJEEV NANDA [K.S. RADHAKRISHNAN, J.]
appeal, the appe::llant turned hostile to accept occurrence A
of the said horrifying accident while driving BMW car
bearing registration No. M-312-LYP. Certainly, a lot of
lime could have been saved had the accused been honest
from day one and admitted his guilt."
8
24. Accused, though did not file any appeal against those
findings, we heard his senior counsel at length on all points and
we do not find any illegality in the reasoning of the trial court
as well as the High Court which we fully concur with. Learned
senior counsel, however, after admitting the factum of the
acCident and that it was the accused, who was driving the car C.
on the fateful day, causing death of persons, pointed out various
factors which according to the counsel had contributed to the
accident and hence no further enhancement of sentence is
warranted.
D
Drunken driving
25. Learned senior counsel, appearing for the accused,
as already pointed, has stated that there was nothing on record
to prove that the first accused was intoxicated in the sense in E
which it is understood under Section 85 of the IPC nor in the
sense that his ability to control the motor vehicle had been
substantially impaired as a result of consumption of alcohol as
laid down by Section 185 of the M.V. Act. Further, it was also
stated that the first accused had driven the vehicle about 16
kms prior to the accident. If he was in a drunken state, he could F
not have driven the car for that much of distance. Further, it
was also pointed out that the procedure laid down under
Section 185 of the M.V. Act was not followed. Consequently,
learned senior counsel pointed out that the courts have
committed an error in holding that he was under the influence G
of liquor when the accident had happened. In our view, both
the courts below have rightly rejected those contentions raised
by learned senior counsel. The scope of Section 185 is not
what the senior counsel submits.
H
906 SUPREME COURT REPORTS (2012] 12 S.C.R.
A Section 185 of the M.V. Act is extracted herein below:
"Section 185 - Driving by a drunken person or by a person
under the influence of drugs
Whoever, while Driving, or attempting to drive, a motor
B vehicle,-
(a) has, in his blood, alcohol exceeding 30 mg. per 100
ml. of blood detected in a test by a breath analyser, or
c (b) is under this influence of a drug to such an extent as to
be incapable of exercising proper control over the vehicle,
shall be punishable for the first offence with imprisonment
for a term which may extend to six months, or with fine
which may extend to two thousand rupees, or with both;
D and for a second or subsequent offence, if committed
within three years of the commission of the previous similar
offence, with imprisonment for a term which may extend
to two years, or with fine which may extend to three
thousand rupees, or with both.
E
Explanation. -For the purposes of this section, the drug or
drugs specified by the Central Government in this behalf,
by notification in the Official Gazette, shall be deemed to
render a person incapable of exercising proper control over
a motor vehicle."
F
26. Section 203 of the MV Act deals with Breath Tests.
The relevant portion for our purpose is given below:
"203. Breath tests.- (1) A police officer in uniform
G or an officer of the Motor Vehicles Department, as may be
authorized in this behalf by that Department, may require
any person driving or attempting to drive a motor vehicle
in a public place to provide one or more specimens of
breath for breath test there or nearby, if such police officer
H
STATE TR. P.S. LODHI COLONY NEW DELHI v. 907
SANJEEV NANDA [K.S. RADHAKRISHNAN, J.]
or officer has any reasonable cause to suspect him of A
having committed an offence under section 185:
JOO( JOO( JOO(
JOO( JOO( JOO(
B
(4) If a person, required by a police officer under sub-
section (1) or sub-section (2) to provide a specimen of
breath for a breath test, refuses or fails to do so and the
police officer has reasonable cause to suspect him of
having alcohol in his blood, the police officer may arrest c
him without warrant except while he is at a hospital as an
indoor patient.
JOO( JOO( JOO(
JOO( JOO( 'XXi.' D
Section 205 deals with presumption of unfitness to drive which
reads as follows:
"205. Presumption of unfitness to drive.- In any
proceeding for an offence punishable under section 185 E
if it is proved that the accused when requested by a police
officer at any time so to do, had refused, omitted or failed
to consent to the taking of or providing a specimen of his
breath for a breath test or a specimen of his blood for a
laboratory test, his refusal, omission or failure may, unless F
reasonable cause therefor is shown, be presumed to be
a circumstance supporting any evidence given on behalf
of the prosecution, or rebutting any evidence given on
behalf of the defence, with respect to his condition at that
time." G
The accused, in this case, escaped from the scene of
occurrence, therefore, he could not be subjected to Breath
Analyzer Test instantaneously, or take or provide specimen of
his breath for a breath test or a specimen of his blood for a H
908 SUPREME COURT REPORTS [2012] 12 S.C.R.
A laboratory test. Cumulative effect of the provisions, referred
to the above, would indicate that the Breath Analyzer Test has
a different purpose and object. The language of the above
sections would indicate that the said test is required to be
carried out only when the person is driving or attempting to
B drive the vehicle. The expressions "while driving" and
"attempting to drive" in the above sections have a meaning "in
praesenti". In such situations, the presence of alcohol in the
blood has to be determined instantly so that the offender may
be prosecuted for drunken driving. A Breath Analyzer Test is
c applied in such situations so that the alcohol content in the
blood can be detected. The breath analyzer test could not have
been applied in the case on hand since the accused had
escaped from the scene of the accident and there was no
question of subjecting him to a breath analyzer test
D instantaneously. All the same, the first accused was taken to
AllMS hospital at 12.29 PM on 10.01.1999 when his blood
sample was taken by Dr. Madulika Sharma, Senior Scientific
Officer (PW16). While testing the alcohol content in the blood,
she noticed the presence of 0.115% weight/volume ethyl
alcohol. The report exhibited as PW16/A was duly proved by
E the Doctor. Over and above in her cross-examination, she had
explained that 0.115% would be equivalent to 115 mg per 100
ml of blood and deposed that as per traffic rules, if the person
is under the influence of liquor and alcohol content in blood
exceeds 30 mg per 100 ml of blood, the person is said to have
F committed the offence of drunken driving.
27. Further, the accused was also examined on the
morning of 10.01.1999 by Dr. T. Milo - PW10, Senior Resident,
Department of Forensic Medicine, AllMS, New Delhi and
G reported as follows:
"On examination, he was conscious, oriented, alert and co-
operative. Eyes were congested, pupils were bilaterally
dilated. The speech was coherent and gait unsteady.
Smell of alcohol was present."
H
STATE TR. P.S. LODHI COLONY NEW DELHI v. 909
SANJEEV NANDA [K.S. RADHAKRISHNAN, J.]
28. Evidence of the experts clearly indicates the presence A
of alcohol in blood of the accused beyond the permissible limit,
that was the finding recorded by the Courts below. Judgments
referred to by the counsel that if a particular procedure has been
prescribed under Sections 185 and 203, then that procedure
has to be followed, has no application to the facts of this case. B
Judgments rendered by the House of Lords were related to the
provision of Road Safety Act, 1967, Road Traffic Act, 1972 etc.
in U.K. and are not applicable to the facts of this case.
29. We are in this case not merely dealing with a traffic
violation or a minor accident, but an accident where six human C
beings were killed. we find no relevance in the argument that
the accused was coming from a distance of 16 kms. before
the accident, causing no untoward incident and hence it is to
be presumed that he was in a normal state of mind. First of
all, that statement is not supported by evidence apart from the D
assertion of the accused. Assuming so, it is a weak defence,
once it is proved that the person had consumed liquor beyond
the prescribed limit on scientific evidence. This court in Kurban
Hussain v. State [AIR 1965 SC 1616] approved the plea that
simply because of the fact that no untoward incident had taken E
place prior to the occurrence of the accident, one cannot infer
that the accused was sober and not in a drunken state. In the
instant case, the presence of alcohol content was much more
(i.e. 0.115%) than the permissible limit and that the accused
was in an inebriated state at the time of accident due to the F
influence of liquor and in the accident, six human lives were lost.
30. Drunken driving has become a menace to our society.
Everyday drunken driving results in accidents and several
human lives are lost, pedestrians in many of our cities are not G
safe. Late night parties among urban elite have now become
a way of life followed by drunken driving. Alcohol consumption
impairs consciousness and vision and it becomes impossible
to judge accurately how far away the objects are. When depth
perception deteriorates, eye muscles lose their precision H
causing inability to focus on the objects. Further, in more
910 SUPREME COURT REPORTS [2012] 12 S.C.R.
A unfavourable conditions like fog, mist, rain etc., whether it is
night or day, it can reduce the visibility of an object to the point
of being below the limit of discernibility. In short, alcohol leads
to loss of coordination, poor judgment, slowing down of reflexes
and distortion of vision.
B
31. Punishment meted out to a drunken driver, is at least
a deterrent for other such persons getting away with minor
punishment and fine. Such incidents are bound to increase with
no safety for pedestrians on the roads. The contention raised
by learned senior counsel that the accused was not under the
C influence of liquor or beyond the limit prescribed under the M.V.
Act and he was in his senses and the victims were at fault being
on the middle of the road, is without any substance and only to
be rejected.
D Fog, visibility and speed
32. Learned senior counsel, as already indicated, pointed
out that the morning of 10.01.1999 was a foggy one and that
disrupted the visibility. Reference was made to the report
E exhibited as PW15/B, that of Dr. S.C. Gupta Director of
Meteorological Department. Learned senior counsel pointed
out that the presence of fog is a fact supported by the said
report. Further, it was also pointed out that PW2 - Manoj Malik
had also suggested the presence of fog and the absence of
F street light and all those factors contributed to the accident. It
was pointed out by the High Court that even, during the course
of the arguments, there was no mention of the plea of fog nor
was the ground taken in the appeal memorandum. Further, it
was also pointed out that such an argument was never raised
before the trial court as well. No case was built up by the
G defence on the plea of fog and in our view there is no
foundation for such an argument.
33. Even going by the evidence of PW15 - Dr. S.C. Gupta
and also the report exhibited as PW 15/B, there is nothing to
H show the presence of fog on the spot of the accident. PW15
STATE TR. P.S. LODHI COLONY NEW DELHI v. 911
SANJEEV NANDA [K.S. RADHAKRISHNAN, J.]
Dr. Gupta's report stated the sky was mainly clear and there A
was no mention of the presence of mist or fog at the spot in
the report. The visibility of 100 m of clear sky was reported by
PW 15 in exhibit 15/B which would demolish the theory of fog
at the spot of the accident and poor visibility. In our view, there
is another fallacy in that argument. Assuming that there was B
presence of fog, it was a duty of the accused either to stop the
vehicle if the visibility was poor or he should have been more
cautious and driven the vehicle carefully in a lesser speed so
that it would not have blurred his vision. This never happened
since the accused was in an inebriated state and the fact that c
six persons died practically on the spot would indicate that the
vehicle was driven in a rash and negligent manner at an
excessive speed. The plea of fog, even if its presence had
been established, would only weaken the defence case and the
trial court and the High Court had rightly rejected that plea.
D
Driving without licence
34. Learned senior counsel, appearing for the accused,
submitted that the first accused knows driving, though he does
not have a licence duly issued by a licencing authority under E
the M.V. Act, 1988. Learned senior counsel submitted that the
accused had driven the vehicle in America and European
countries and possesses a valid driving licence issued by the
licencing authority of a State in the United States at the relevant
point of time. Learned senior counsel, therefore, pointed out F
that the mere fact that he was not holding a driving licence would
not mean that he does not know driving.
35. Learned senior counsel also submitted that there is no
presumption in law that a person who has no licence does not
know driving. Further, it was also pointed out that driving without G
a licence is an offence under M.V. Act and not under the Penal
Code, unless and until it is proved that a person was driving a
vehicle in a rash and negligent manner so as to attract Section
304A of the IPC. Admittedly, the first accused was not having
an Indian licence at the time of accident though he had H
912 SUPREME COURT REPORTS [2012) 12 S.C.R.
A produced a licence issued by the Licencing Authority from a
State in the United States. A person who is conversant in
driving a motor vehicle in the United States and European
countries may not be familiar with the road conditions in India.
In India, the driver is always on the defensive due to various
B reasons. Pedestrians in India seldom use footpaths nor
respect Zebra lines or traffic lights, two wheelers, auto-
rickshaws, cyclists and street-vendors are common sights on
Indian roads. A driver in Indian roads should expect the
unexpected always, therefore, the plea that the accused has an
C American driving licence is not an answer for driving in Indian
roads unless it is recognized in India or that person is having
a driving licence issued by the Licensing Authority in India. We
have to necessarily draw an inference that the accused was not
conversant in driving a vehicle on the Indian roads in the
D absence of an Indian licence at the time of the accident.
Therefore, the judgment of this Court in Suleman Rahiman
Mulani and Anr. V. State of Maharashtra [AIR 1968 SC 829)
that there is no presumption of law that a person who possesses
only a learning licence or possesses no licence at all, does not
know driving is inapplicable to the facts of this case. In any
E view, in the instant case, we have already found that the
accused was in an inebriated state, therefore, the question
whether he knew driving is not of much consequence.
Duty of Driver. Passengers and Bystanders
F
36. We have found on facts that the accused had never
extended any helping hand to the victims lying on the road and
fled from the scene. Section 134 of M.V. Act. 1988 casts a
duty on a driver to take reasonable steps to secure medical
G attention for the injured person. Section 134 of M.V. Act, 1988
reads as follows:
"134. Duty of driver in case of accident and
injury to a person. - When any person is injured or
any property of a third party is damaged, as a result
H of an accident in which a motor vehicle is involved,
STATE TR. P.S. LODHI COLONY NEW DELHI v. 913
SANJEEV NANDA [K.S. RADHAKRISHNAN, J.]
the driver of the vehicle or other person in charge of A
the vehicle shall -
(a) unless it is not practicable to do so on account of mob
fury or any other reason beyond his control, take all
reasonable steps to secure medical attention for the B
injured person, by conveying him to the nearest
medical practitioner or hospital, and it shall be the duty
of every registered medical practitioner or the doctor on
the duty in the hospital immediately to attend to the
injured person and render medical aid or treatment
without waiting for any procedural formalities, unless C
the injured person or his guardian, in case he is a
minor, desired otherwise;
(b) give on demand by a police officer any information
required by him or, if no police officer is present, D
report the circumstances of the occurrence, including
the circumstances, if any, or not taking reasonable
steps to secure medical attention as required under
clause (a), at the nearest police station as soon as
possible, and in any case within twenty-four hours of E
the occurrence;
(c) give the following information in writing to the
insurer, who has issued the certificates of insurance,
about the occurrence of the accident, namely :-
F
(i) insurance policy number and period of its validity;
(ii) date, time and place of accident;
(iii.) particulars of the persons injured or killed in the G
accident;
(iv.) name of the driver and the particulars of his driving
licence.
Explanation. - For the purposes of this section, the H
914 SUPREME COURT REPORTS [2012] 12 S.C.R.
A expression "driver'' includes the owner of the vehicle."
Section 187 of the M.V. Act, 1988 provides for punishment
relating to accident, which reads as follows:
"187. Punishment for offence relating to accident.
B - Whoever fails to comply with the provisions of clause
(c) of sub-section (1) of section 132 or of section
133 or section 134 shall be punishable with
imprisonment for a term which may extend to three
months, or with fine which may extend to five hundred
c rupees, or with both or, if having been previously
convicted of an offence under this section, he is again
convicted of an offence under this section, with
imprisonment for a term which may extend to six
months, or with fine which may extend to one thousand
D rupees, or with both."
Of course, no proceedings were instituted against the a.ccused
in the case on hand invoking the above mentioned provisions,
however, the unfortunate accident in which six persons were
E killed at the hands of the accused, prompted us to express our
deep concern and anguish on the belief that, at least, this
incident would be an eye-opener and also food for thought as
to what we should do in future when such situations arise. This
Court in Pt. Parmanand Katara v. Union of India (UOI) and
Ors. [(1989) 4 SCC 286] pointed out that it is the duty of every
F citizen to help a motor accident victim, more so when one is
the cause of the accident, or is involved in that particular
accident. Situations may be there, in a highly charged
atmosphere or due to mob fury, the driver may flee from the
place, if there is a real danger to his life, but he cannot shirk
G his responsibility of informing the police or other authorized
persons or good samaritans forthwith, so that human lives could
be saved. Failure to do so, may lead to serious consequences,
as we see in the instant case. Passengers who are in the
vehicle which met with an accident, have also a duty to arrange
H proper medical attention for the victims. Further they have
STATE TR. P.S. LODHI COLONY NEW DELHI v. 915
SANJEEV NANDA (K.S. RADHAKRISHNAN, J.]
· equal responsibility to inform the police about the factum of the A
accident, in case of failure to do so they are aiding the crime
and screening the offender from legal punishment.
37. No legal obligation as such is cast on a bystander
either under the Motor Vehicle Act or any other legislation in
8
India. But greater responsibility is cast on them, because they
are people at the scene of the occurrence, and immediate and
prompt medical attention and care may help the victims and
their dear ones from unexpected catastrophe. Private hospitals
and government hospitals, especially situated near the Highway,
where traffic is high, should be equipped with all facilities to C
meet with such emergency situations. Ambulance with all
medical facilities including doctors and supporting staff should
be ready, so that, in case of emergency, prompt and immediate
medical attention could be given. In fact, this Court in Paschim
Banga Khet Mazdoor Samiti and Ors. V. State of-West Bengal D
and Ors. (1996) 4 SCC 37, after referring to the report of
Justice Lilamoy Ghose, a retired Judge of the Calcutta High
Court, gave various directions to the Union of India and other
States to ensure immediate medical attention in such situations
and to provide immediate treatment to save human lives. Law E
Commission in its 201 st report dated 31.8.2006 had also made
various recommendations, but effective and proper steps are
yet to be taken by Union of India and also many State
Governments. We call for the immediate attention of the Union
of India and other State Governments, if they have not already F
implemented those directions, which they may do at the
earliest.
38. Seldom, we find that the passing vehicles stop to give
a helping hand to take the injured persons to the nearby G
hospital without waiting for the ambulance to come. Proper
attention by the passing vehicles will also be of a great help
and can save human lives. Many a times, bystanders keep
away from the scene, perhaps not to get themselves involved
in any legal or court proceedings. Good Samaritans who come H
916 SUPREME COURT REPORTS (2012] 12 S.C.R.
A forward to help must be treated with respect and be assured
that they will have to face no hassle and will be properly
rewarded. We, therefore, direct the Union of India and State
Governments to frame proper rules and regulations and conduct
awareness programmes so that the situation like this could, to
B a large extent, be properly attended to and, in that process,
human lives could be saved.
Hostile Witnesses
39. We notice, in the instant case, the key prosecution
C witnesses PW1 - Harishankar, PW2 - Manoj Malik, PW3 -
Sunil Kulkarni turned hostile. Even though the above mentioned
witnesses turned hostile and Sunil Kulkarni was later examined
as court witness, when we read their evidence with the
evidence of others as disclosed and expert evidence, the guilt
D of the accused had been clearly established. In R.K. Anand
(supra), the unholy alliance of Sunil Kulkarni with the defence
counsel had .been adversely commented upon and this Court
also noticed that the damage they had tried to cause was far
more serious than any other prosecution witness.
E
40. Witness turning hostile is a major disturbing factor
faced by the criminal courts in India. Reasons are many for
the witnesses turning hostile, but of late, we see, especially in
high profile cases, there is a regularity in the witnesses turning
hostile, either due to monetary consideration or by other
F tempting offers which undermine the entire criminal justice
system and people carry· the impression that the mighty and
powerful can always get away from the clutches of law thereby,
eroding people's faith in the system. This court in State of U.P.
v. Ramesh Mishra and Anr. [AIR 1996 SC 2766] held that it
G is equally settled law that the evidence of hostile witness could
not be totally rejected, if spoken in favour of the prosecution or
the accused, but it can be subjected to closest scrutiny and that
portion of the evidence which is consistent with the case of the
prosecution or defence may be accepted. In K. Anbazhagan
H v. Superintendent of Police and Anr. [AIR 2004 SC 524), this
STATE TR. P.S. LODHI COLONY NEW DELHI v. 917
SANJEEV NANDA [K.S. RADHAKRISHNAN, J.]
Court held that if a court finds that in the process the credit of A
the witness has not been completely shaken, he may after
reading and considering the evidence of the witness as a whole
with due caution, accept, in the light of the evidence on the
record that part of his testimony which it finds to be creditworthy
and act upon it. This is exactly what was done in the instant B
case by both the trial court and the High Court and they found
the accused guilty.
41. We cannot, however, close our eyes to the disturbing
fact in the instant case where even the injured witness, who was C
present on the spot, turned hostile. This Court in Sidhartha
Vashisht @ Manu Sharma v. State (NCT o Delhi) [(2010) 6
SCC 1] and in Zahira Habibullah Shaikh v. State of Gujarat
[AIR 2006 SC 1367] had highlighted the glaring defects in the
system like non-recording of the statements correctly by the
police and the retraction of the statements by the prosecution D
witness due to intimidation, inducement and other methods of
manipulation. Courts, however, cannot shut their eyes to the
reality. If a witness becomes hostile to subvert the judicial
process, the Courts shall not stand as a mute spectator and
every effort should be made to bring home the truth. Criminal E
judicial system cannot be overturned by those gullible witnesses
who act under pressure, inducement or intimidation. Further,
Section 193 of the IPC imposes punishment for giving false
evidence but is seldom invoked.
F
Section 304(11) or Section 304A of the IPC
42. We may in the above background examine whether the
offence falls under Section 304(11) of the IPC or Section 304A
of the IPC from the facts unfolded in this case. Shri Raval,
appearing for the State, as already indicated, argued that the G
facts of this case lead to the irresistible conclusion that it would
fall under Section 304(11) of the IPC. Learned counsel pointed
out that the accused after having noticed that the speeding car
had hit several persons, left the spot without giving any medical
H
918 SUPREME COURT REPORTS [2012] 12 S.C.R.
A aid or help knowing fully well that his act was likely to cause
death. Learned counsel pointed out that in any view, it would
at least fall under Section 304(11) of the IPC.
43. Shri Ram Jethmalani, on the other hand, submitted that
Section 304(11), will never apply in a case of this nature,
8
especially in the absence of any premeditation. Learned senior
counsel submitted that the accused entertained no knowledge
that his action was likely to cause death assuming he was rash
and negligent in driving the car. Learned senior counsel pointed
out that the offence of culpable homicide presupposes an
C intention or knowledge and the intention must be directed either
deliberately to put an end to human life or to some act which
to the knowledge of the accused is likely to eventuate iro putting
an end to human life. Learned senior counsel submitted that
the accused had no such knowledge either before or
D immediately after the accident.
44. First we will examine the scope of section 304A of the
IPC which reads as follows:
"304A. Causing death by negligence.-
E
Whoever causes the death of any person by doing any
rash or negligent act not amounting to culpable homicide,
shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or
F with both."
On reading the above mentioned provision, the following
requirements must be satisfied before applying this section:
(i) Death must have been caused by the accused;
G
(ii) Death caused by rash or negligent act;
(iii) Rash and negligent act must not amount to culpable
homicide.
H
STATE TR. P.S. LODHI COLONY NEW DELHI v. 919
SANJEEV NANDA [K.S. RADHAKRISHNAN, J.]
Section 304A carves out a specific offence where death is A
caused by doing a rash or negligent act and that act does not
amount to culpable homicide not amounting to murder under
Section 299 or murder under Section 300. Section 304A
excludes all the ingredients of Section 299 or Section 300.
B
45. The above mentioned section came up for
consideration in Haidarali Kalubhai (supra) wherein this Court
held as follows:
"Section 304A carves out a specific offence where death
is caused by doing a rash or negligent act and that act C
does not amount to culpable homicide u/s 299 IPC or
murder u/s 300 IPC. If a person willfully drives a motor
vehicle in the midst of a crowd and thereby causes death
to some persons, it will not be a cause of mere rash and
negligent driving and the act will amount to culpable D
homicide. Each case will, therefore, depend upon the
particular facts established against the accused."
Before elaborating and examining the above principle laid
down by this court, we will refer to sections 299, 300, 304A of E
the IPC.
Section 299
A person commits culpable homicide if the act by which
the death is caused is done F
********
(c) with the knowledge that he is likely to cause death.
Section 300 G
Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is caused
is done
******** H
920 SUPREME COURT REPORTS [2012] 12 S.C.R.
.A (4) with the knowledge that it is so imminently dangerous
that it must, in all probability, cause death or such bodily
injury as is likely to cause death, and commits such act
without any excuse for incurring the risk of causing death
or such injury as aforesaid.
B
"304. Punishment for culpable homicide not
amounting to murder.- Whoever commits culpable
homicide not amounting to murder shall be punished
with imprisonment for life, or imprisonment of either
description for a term which may extend to ten years, and
c shall also be liable to fine, if the act by which the death is
caused is done with the intention of causing death, or of
causing such bodily injury as is likely to cause death,
or with imprisonment of either description for a term which
D may extend to ten years, or with fine, or with both, if the
act is done with the knowledge that it is likely to cause
death, but without any intention to cause death, or to cause
such bodily injury as is likely to cause death."
46. Section 299 of the IPC defines culpable homicide as
E an act of causing death (i) with the intention of causing death;
(ii) with the intention of causing some bodily injury as is likely
to cause death; and (iii) with the knowledge that such act is
likely to cause death. The first and second clauses of the
section refer to intention apart from knowledge and the third
F clause refers to knowledge apart from intention. "Intention" and
"knowledge" postulate the existence of positive mental attitude.
The expression 'knowledge' referred to in section 299 and
section 300 is the personal knowledge of the person who does
the act. To make out an offence punishable under Section
G 304(11) of the IPC, the prosecution has to prove the death of the
person in question and such death was caused by the act of
the accused and that he knew such act of his is likely to cause
death.
H 47. Section 304A, as already indicated, carves out a
STATE TR. P.S. LODHI COLONY NEW DELHI v. 921
SANJEEV NANDA [K.S. RADHAKRISHNAN, J.)
specific offence where death is caused by doing a rash or A
negligent act and that act does not amount to culpable
homicide not amounting to murder under Section 299 or murder
under Section 300. The scope of the above mentioned
provisions came up for consideration before this court in the
judgment of Naresh Giri v. State of M.P. [(2008) 1 SCC 791]; B
wherein this court held as follows:
"Section 304A IPC 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 C
directed at offences outside the range of Sections 299 and
300 IPC. Section 304A 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 304A."
D
48. In a recent judgment, in Alister Anthony Pareira (supra),
this Court after surveying a large number of judgments on the
scope of Sections 304A and 304(11) of the IPC, came to the
conclusion that in a case of drunken driving resulting in the
death of seven persons and causing injury to eight persons, the E
scope of Sections 299, 300 and 304(1) and (II) of the IPC stated
to be as follows:
"Each case obviously has to be decided on its own facts.
In a case where negligence or rashness is the cause of
death and nothing more, Section 304A may be attracted F
but where the rash or negligent act is preceded with the
knowledge that such act is likely to cause death,
Section 304 Part II Indian Penal Code may be attracted
and if such a rash and negljgent act is preceded by real
intention on the part of the.wrong doer to cause death, G
offence may be punishable under Section 302 Indian
Penal Code."
On facts, the court concluded as follows:
H
922 SUPREME COURT REPORTS [2012] 12 S.C.R.
A ''The facts and circumstances of the case which have been
proved by the prosecution in bringing home the guilt of the
accused under Section 304 Part II Indian Penal Code
undoubtedly show despicable aggravated offence
warranting punishment proportionate to the crime. Seven
B precious human lives were lost by the act of the accused.
For an offence like this which has been proved against the
Appellant, sentence of three years awarded by the High
Court is too meagre and not adequate but since no appeal
has been preferred by the State, we refrain from
c considering the matter for enhancement. By letting the
Appellant away on the sentence already undergone i.e. two
months in a case like this, in our view, would be travesty
of justice and highly unjust, unfair, improper and
disproportionate to the gravity of crime. It is true that the
Appellant has paid compensation of Rs. 8,50,000/- but no
D
amount of compensation could relieve the family of victims
from the constant agony. As a matter of fact, High Court
had been quite considerate and lenient in awarding to the
Appellant sentence of three years for an offence under
Section 304 Part II Indian Penal Code where seven
E persons were killed."
49. In Jagriti Devi v. Slate of Himacha/ Pradesh [(2009)
14 SCC 771]; wherein the Bench of this Court held that it is
trite law that Section 304 Part II comes into play-when the death
F is caused by doing an act with knowledge that it is likely to
cause death but there is no intention on the part of the accused
either to cause death or to cause such bodily injury as is likely
to cause death.
G 50. One of the earlier decisions of this Court in State of
Andhra Pradesh v. Rayavarapu Punnayya and Another
[(1976) 4 SCC 382], this Court succinctly examined the
distinction between Section 299 and Secti9n 300 of the IPC
and in para 12 of the Judgment and held as follows:
H "In the scheme of the Penal C?de, 'culpable homicide' is
STATE TR. P.S. LODHI COLONY NEW DELHI v. 923
SANJEEV NANDA [K.S. RADHAKRISHNAN, J.]
genus and 'murder' its specie. All 'murder' is 'culpable A
homicide' but not vice-versa. Speaking generally, 'culpable
homicide' sans 'special characteristics of murder', is
'culpable homicide not amounting to murder'. For the
purpose of fixing punishment, proportionate to the gravity
of this generic offence, the Code practically recognises B
three degrees of culpable homicide. The first is, what may
be called, culpable homicide of the first degree. This is the
gravest form of culpable homicide which is defined in
Section 300 as 'murder'. The second may be termed as
'culpable homicide of the second degree'. This is c
punishable under the 1st part of Section 304. Then, there
is 'culpable homicide of the third degree.' This is the lowest
type of culpable homicide and the punishment provided for
it is, also, the lowest amqng the punishments provided for
the three grades. Culpable homicide of this degree is D
punishable under the second Part of Section 304."
51. Referring to para 14 of that judgment, the Court opined
that the difference between Clause (b) of Section 299 and
Clause (3) of Section 300 is one of the degree of probability
of death resulting from the intended bodily injury. The word E
"likely" in Clause (b) of Section 299 conveys the sense of
'probable' as distinguished from a mere possibility. The words
"bodily injury... sufficient in the ordinary course of nature to cause
death'" mean that death will be the "most probable" result of the
injury having regard to the ordinary course of nature. F
Ultimately, the Court concluded as follows:
"From the above conspectus, it emerges that whenever a
court is confronted with the question whether the offence
is 'murder' or 'culpable homicide not amounting to murder,' G
on" the facts of a case, it will be convenient for it to
approach the problem in three stages. The question to be
considered at the first stage would be, whether the
accused has done an act by doing which he has caused
the death of another. Proof of such causal connection H
924 SUPREME COURT REPORTS [2012] 12 S.C.R.
A between the act of the accused and the death, leads to
the second stage for considering whether that act of the
accused amounts to "culpable homicide" as defined in
Section 299. If the answer to this question is prima facie
found in the affirmative, the stage for considering the
B operation of Section 300, Penal Code is reached. This is
[the stage at which the Court should determine whether the
facts proved by the prosecution bring the case within the
ambit of any of the four Clauses of the definition of murder'
contained in Section 300. If the answer to this question is
c in the negative the offence would be 'culpable homicide
not amounting to murder', punishable under the first or the
second part of Section 304, depending, respectively, on.
whether the second or the third Clause of Section 299 is
applicable." If this question is found in the positive, but the
case comes, within any of the Exceptions enumerated in
D
Section 300, the offence would still be 'culpable homicide
not amounting to murder', punishable under the First Part
of Section 304, Penal Code."
52. The principle mentioned by this court in Alister
E Anthony Pareira (supra) indicates that the person must be
presumed to have had the knowledge that, his act of driving
the vehicle without a licence in a high speed after consuming
liquor beyond the permissible limit, is likely or sufficient in the
ordinary course of nature to cause death of the pedestrians on
F the road. In our view, Alister Anthony Pareira (supra) judgment
calls for no reconsideration. Assuming that Shri Ram
Jethmalani is right in contending that while he was driving the
vehicle in a drunken state, he had no intention or knowledge
that his action was likely to cause death of six human beings,
G in our view, at least, immediately after having hit so many
human beings and the bodies scattered around, he had the
knowledge that his action was likely to cause death of so many
human beings, lying on the road unattended. To say, still he
had no knowledge about his action is too childish which no
H reasonable man can accept as worthy of consideration. So far
STATE TR. P.S. LODHI COLONY NEW DELHI v. 925
SANJEEV NANDA [K.S. RADHAKRISHNAN, J.]
as this case is concerned, it has been brought out in evidence A
that the accused was in an inebriated state, after consuming
excessive alcohol, he was driving the vehicle without licence,
in a rash and negligent manner in a high speed which resulted
in the death of six persons. The accused tiad sufficient
knowledge that his action was likely to cause death and such B
an action would, in the facts and circumstances of this case fall
under Section 304(11) of the IPC and the trial court has rightly
held so and the High Court has committed an error in converting
the offence to Section 304A of the IPC.
53. We may now examine the mitigating and aggravating
c
circumstances and decide as to whether the punishment
awarded by the High Court is commensurate with the gravity
of the offence.
54. Mitigating circumstances suggested by the defence D
counsel are as follows:
(i) The accused was only 21 years on the date of the
accident, later married and has a daughter;
E
(ii) Prolonged trial, judicial unfairness caused
prejudice;
(iii) The accused has undergone sentence of two years
awarded by the High Court and, during that period,
his conduct and behavior in the jail was F
appreciated;
(iv) Accident occurred on a foggy day in the early hours
of morning with poor visibility;
(v) The accused had no previous criminal record nor G
has he been involved in any criminal case
subsequently;
(vi) The accused and the family members contributed
H
926 SUPREME COURT REPORTS (2012] 12 S.C.R.
A and paid a compensation of 65 lacs, in total, in the
year 1999 to the families of the victims;
(vii) The accused had neither the intention nor
· knowledge of the ultimate consequences of his
action and that he was holding a driving licence
B
from the United States.
55. Following are, in our view, the aggravating
circumstances unfolded in this case:
c (i) Six persons died due to the rash and negligent
driving of the accused and the car was driven with
the knowledge that drunken driving without licence
is likely to cause death.
(ii) Much of the delay in completing the trial could have
D been avoided if wisdom had dawned on the
accused earlier. Only at the appellate stage the
accused had admitted that it was he who was
driving the vehicle on the fateful day which resulted
in the death of six persons and delay in completion
E of the trial cannot be attributed to the prosecution
as the prosecution was burdened with task of
establishing the offence beyond reasonable doubt
by examining sixty one witnesses and producing
several documents including expert evidence.
F
(iii) The accused did not stop the vehicle in spite of the
fact that the vehicle had hit six persons and one got
injured and escaped from the spot without giving
any helping hand to the victims who were dying and
G crying for help. Human lives could have been
saved, if the accused had shown some mercy.
(iii) The accused had the knowledge that the car driven
by him had hit the human beings and human bodies
were scattered around and they might die, but he
H thought of only his safety and left the place, leaving
STATE TR. P.S. LODHI COLONY NEW DELHI v. 927
SANJEEV NANDA [K.S. RADHAKRISHNAN, J.]
their fate to destiny which, in our view, is not a A
normal human psychology and no court can give a
stamp of approval to that conduct.
(iv) Non-reporting the crime to the police even after
reaching home and failure to take any steps to
8
provide medical help even after escaping from the
site.
56. Payment of compensation to the victims or their
relatives is not a mitigating circumstance, on the other hand, it
is a statutory obligation. Age of 21, as such is also not a C
mitigating factor, in the facts of this case, since the accused is
not an illiterate, poor, rustic villager but an educated urban elite,
1
undergoing studies abroad. We have to weigh all these
' mitigating and aggravating circumstances while awarding the
sentence. D
Sentencing
57. We have to decide, after having found on facts, that
this case would fall under Section 304 Part II, what will be the
appropriate sentence. Generally, the policy which the court E
adopts while awarding sentence is that the punishment must
be appropriate and proportional to the gravity of the offence
committed. Law demands that the offender should be
adequately -punished for the crime, so that it can deter the
offender and other persons from committing similar offences. F
Nature and circumstances of the offence; the need for the
sentence imposed to reflect the seriousness of the offence; to
afford adequate deterrence to the conduct and to protect the
public from such crimes are certain factors to be considered
while imposing the sentence. G
58. The imposition of sentence without considering its
effect on the social order in many cases is in reality a futile
exercise. In our view, had the accused extended a helping hand
to the victims of the accident, caused by him by making H
928 SUPREME COURT REPORTS (2012] 12 S.C.R.
A arrangements to give immediate medical attention, perhaps
lives of some of the victims could have been saved. Even after
committing the accident, he only thought of his safety, did not
care for the victims and escaped from the site showing least
concern to the human beings lying on the road with serious
8 injuries. Conduct of the accused is highly reprehensible and
cannot be countenanced, by any court of law.
59. The High Court, in our view, has committed an error
in converting the conviction to Section 304A of the IPC from
that of 304(11) IPC and the conviction awarded calls for a re-
c look on the basis of the facts already discussed, otherwise this
Court will be setting a bad precedent and sending a wrong
message to the public. After having found that the offence
would fall under Section 304(11) IPC, not under Section 304A,
the following sentence awarded would meet the ends of justice,
D in addition to the sentence already awarded by the High Court.
Community Service for Avoiding Jail Sentence
60. Convicts in various countries, now, voluntarily come
E forward to serve the community, especially in crimes relating
to motor vehicles. Graver the crime greater the sentence. But,
serving the society actually is not a punishment in the real sense
where the convicts pay back to the community which he owes.
Conduct of the convicts will not only be appreciated by the
community, it will also give a lot of solace to him, especially in
F a case where because of one's action and inaction, human
lives have been lost.
61. In the facts and circumstances of the case, where six
human lives were lost, we feel, to adopt this method would be
G good for the society rather than incarcerating the convict further
in jail. Further sentence of fine also would compensate at least
some of the victims of such road accidents who have died,
especially in hit and run cases where the owner or driver cannot
be traced. We, therefore, order as follows:
H
STATE TR. P.S. LODHI COLONY NEW DELHI v. 929
SANJEEV NANDA
(1) Accused has to pay an amount of Rs.50 lakh A
(Rupees Fifty lakh) to the Union of India within six
months, which will be utilized for providing
compensation to the victim of motor accidents,
where the vehicle owner, driver etc. could not be
traced, like victims of hit and run cases. On default, B
he will have to undergo simple imprisonment for
one year. This amount be kept in a different head
to be used for the aforesaid purpose only.
(2) The accused would do community service for two C
years which will be arranged by the Ministry of
Social Justice and Empowerment within two
months. On default, he will have to undergo simple
imprisonment for two years.
The Appeal is allowed to the aforesaid extent and the D
accused is sentenced as above.
DEEPAK VERMA, J. 1. Delay condoned.
2. Leave granted.
E
3. The solitary question that arises for our consideration
in this appeal is whether respondent accused deserves to be
held guilty of commission of offence under Section 304 Part II
of the Indian Penal Code (for short IPC) or the conviction and
sentence awarded to him by the High Court of Delhi, under F
Section 304 A of the IPC should be held to be good and legally
tenable.
4. On 12.04.2010, limited notice was issued to the
respondent by this Court, which reads as under:
G
"Issue notice confining to the nature of offence".
Facts shorn of unnecessary details as unfolded by
prosecution are mentioned hereinbelow:
H
930 SUPREME COURT REPORTS [2012) 12 S.C.R.
A 5. On the intervening night of 9/10.01.1999, an unfortunate .
motor accident took place involving BMW Car No.M-312LYP.
At the relevant point of time, it is no more in dispute that
offending vehicle BMW was being driven by respondent. As
per prosecution story, the said vehicle was coming from
B Nizamuddin side and was proceeding towards Lodhi Road.
Just at the corner from where Lodhi Road starts, seven persons
were standing on the road at about 4.00 a.m. In the said car,
Manik Kapur and Sidharth Gupta (since discharged) were also
sitting.
c 6. As per prosecution story, Manoj Malik (P.W.2) had
started from his house to leave friends Nasir, Mehendi Hasan
and his friend Guiab at Nizamudin Railway Station on foot.
When they reached the petrol pump of Lodhi Road, three police
officials of checking squad, Constables Rajan, Ram Raj and
D Peru Lal, stopped them and started checking. In the meantime,
BMW car driven rashly and negligently came from Nizamuddin
side at a high speed and dashed violently against them. The
impact was so great and severe, that they flew in the air and
fell on the bonnet and wind screen of the car. Some of them
E rolled down and came beneath the car. On account of this,
accused Jost control of the vehicle which swerved to right side
of the road and ultimately hit the central verge. The persons
who had come under the car were dragged up to that point.
Manoj (P.W.2) who had fallen on the bonnet fell down at some
F distance but did not come under the wheels. After hitting the
central verge, car finally stopped at some distance, respondent
came out from the car and inspected the gruesome site. It is
said that co-passenger Manik Kapur asked the accused to rush
from the scene of occurrence. Injured persons were shouting
G and crying for help. But ignoring them, he drove away the car
at high speed towards Dayal Singh College, even though there
were still some persons beneath the car. In the said accident
ultimately six of them were killed and Manoj (P.W.2) was
injured. Accused then took the car to his friend Sidharth
H Gupta's house at 50, Golf Links, New Delhi.
STATE TR. P.S. LODHI COLONY NEW DELHI v. 931
SANJEEV NANDA [DEEPAK VERMA, J.]
7. Prosecution story further goes to show that there another A
accused Rajeev Gupta, father of Sidharth Gupta with the help
of two servants, accused Shyam and Bhola washed the car and
destroyed the material evidence.
8. Prosecution alleges that PW.1 Hari Shankar, attendant B
at the petrol pump saw the accident and immediately informed
telephonically his employer Brijesh Virmani, (P.W.70) who in
turn informed the PCR at No.100. On getting the necessary
information, police acted with promptitude. The telephonic
information was recorded as DD No. 27-A.
c
9. Pursuant to the information being received, SI Kailash
Chand reached the spot. By that time few PCR vans had
already reached as the news about the accident was flashed.
First to reach the spot was AS.I. Devendra Singh (P.W.36),
who carried Manoj Malik to the hospital. The other PCR vans D
took the remaining injured /deceased persons to the hospital.
10. S.I. Kailash Chand (P.W.58) wrote a Rukka describing
the scene of crime. As per his description, he had found three
persons, two constables Ravi Raj and Rajan and one person E
dead on the spot. He also came to know that other four injured
persons were taken in another PCR van to the hospital. He
found one broken number plate and other broken parts of the
car. When plate was reassembled, the number read as
M312LYP BMW. One black colour piece of bumper and rear
view mirror were found scattered between 100 to 150 feet. F
Head of one person was found crushed. There were skid
'marks of the tyres of the vehicle on the spot for a long distance.
The body of another constable namely, Ram Raj was found
crushed and his right leg was found at a distance of 10 to 15
feet away. Abdomen of Constable Rajan Kumar was G
completely ripped open and blood was oozing out on the road.
All the three dead bodies were sent to All India Institute of
Medical Sciences (AllMS) by ambulance.
11. Thus, it was clear to SI Kailash Chand that offending H
932 SUPREME COURT REPORTS [2012] 12 S.C.R.
A vehicle was a black colour BMW car having the aforesaid
number plate. Looking to the nature of crime said to have been
committed, he recommended registration of FIR under Section
338/304 IPC. The said Rukka was dispatched to the Police
Station, where formal FIR was registered.
B
12. S.I. Jagdish Pandey (P.W.13) also reached the spot.
He found a trail of oil on the road starting from the scene of
offence. He, thus followed the trail and was able to reach 50
Golf Links. The gate of the house was closed. Jagdish P.W.13
peeped through the side hinges of the gate, and found accused
C Rajeev Gupta, Bhola Nath and Shyam Singh washing damaged
black BMW car. He tried to get the gate opened, but failed.
He then gave a message to SHO Lodhi Colony, Ms. Vimlesh
Yadav who reached there with S.I. Kailash Chand and the gate
was then got opened. This car was not having any number plate.
D The broken pieces collected from the spot matched with BMW
car, other parts collected from the scene fitted well, at the
respective places where the car was damaged. Some blood
was also noticed in the rear left wheel of the car. On enquiries
being made, accused Rajeev informed that car belonged to
E respondent Sanjeev Nanda, a friend of his son Sidharth Gupta.
13. Thereafter, S.J. Ulhas Giri went to the house of the
accused Sanjeev Nanda at Defence Colony. He brought
accused Sanjeev Nanda, Manik Kapur and Sidharth Gupta to
F 50 Golf Links. All the accused were sent for their medical
examination. Respondent accused had sustained an injury on
the lip as noticed by Dr. T.Milo (P.W. 10) who had prepared
the MLC. He also recorded that he was informed by Head
Constable with regard to history of consuming alcohol previous
night. He also noted that a smell of alcohol was present even
G though, the speech of accused Sanjeev was coherent but gait
unsteady. Sample of blood was taken on the same day at
about 12.00 noon which was sent for medical examination and
after testing, alcohol presence of 0.115% milligram per 100
millilitre was recorded. This has been proved by Dr. Madhulika
H Sharma (P.W. 16).
STATE TR. P.S. LODHI COLONY NEW DELHI v. 933
SANJEEV NANDA [DEEPAK VERMA, J.]
14. It is pertinent to mention that no Breath Analyzer or Alco A
meter was used. Prosecution has not assigned any cogent or
valid reasons for this default.
15. After completion of the investigation, charge sheet was
filed against the accused in the Court of Additional Sessions B
Judge, New Delhi. Respondent was charged under Sections
201, 304 (I), 308 read with 34 of the IPC. The case was
registered as Sessions Case No. 25/1999.
16. It is important to mention here that in fact, all the
material witnesses had turned hostile. P.W.1 Hari Shankar, the C
alleged eye witness, P.W.2 Manoj Malik, the injured witness
turned hostile and did not support the prosecution story. The
infamous Sunil Kulkarni was examined as court witness, who
alone supported the prosecution story and has been believed
by the Trial Court as trustworthy. Trial Court recorded that D
testimony of this witness alone as to how the accident took
place is worthy of credence and the same is well corroborated
by the scene of crime.
17. On conclusion of trial, after appreciating the evidence E
available on record, the trial court found respondent guilty of
commission of offence under Section 304 Part II of the IPC and
awarded him a jail sentence of five years. He was acquitted
of other charges. However, accused Rajeev Gupta, Shyam
Singh and Bhola Nath were convicted under Section 201 IPC. F
Rajeev Gupta was sentenced to undergo a sentence of one
year and Bhola Nath and Shyam Singh to undergo a sentence
of six months each.
18. Feeling aggrieved by the said judgment and order of
conviction, respondent filed Criminal Appeal No. 807 of 2008 G
in the High Court of Delhi at New Delhi. Co-accused, Rajeev
Gupta, Bhola Nath and Shyam filed Criminal Appeals No. 767
of 2008 and 871 of 2008 respectively against their conviction
and sentences awarded to them under section 201 of the IPC.
H
934 SUPREME COURT REPORTS (2012] 12 S.C.R.
·A 19. The learned Single Judge considered the matter at
great length and thereafter found the accused Sanjeev Nanda
guilty of commission of offence under Section 304 A of the IPC
and reduced the sentence to two years. While converting the
conviction of said accused from Section 304 Part II to 304 A,
B the High Court has disbelieved the testimony of Sunil Kulkarni
which was the basis for the trial court to come to a conclusion
that the case fell under section 304 Part II. The High Court has
also held that though the act of accused amounted to rashness
and negligence endangering the Hves of others, since there was
c no intention or knowledge of causing death, no case for
conviction of accused under section 304 Part II was made out.
20. Other accused Rajeev Gupta, Shyam and Bhola were
found guilty of commission of offence under Section 201 of the
IPC and were awarded six months' and three months' RI
D respectively. As mentioned hereinabove, they have preferred
separate appeals against the said judgment and order of
conviction, which were heard separately. Their appeals have
been allowed and they have been acquitted of the charge under
Section 201 of the IPC.
E
21. Even though lengthy arguments have been advanced
by learned Additional Solicitor General Mr. Harin P. Raval, to
show the manner in which the investigation was conducted,
suggesting many lacunae were left in the same, at the instance
F and behest of respondent accused, who not only happens to
be a rich person but influential as well. Much was also argued
assigning the reasons as to how relevant and material
witnesses (P.W.1) Hari Shankar, and (P.W.2) Manoj, injured
witness, had turned hostile. It was also then argued that the
G matter was carried to higher court against every order. Thus,
Respondent tried his best to see to it that Sessions Trial is not
concluded early. All these facts have been mentioned not only .
by the Trial Court but have been reiterated by learned Single
Judge also.
H 22. In the light of this, we have heard Mr. Harin P.Raval
STATE TR. P.S. LODHI COLONY NEW DELHI v. 935
SANJEEV NANDA [DEEPAK VERMA, J.)
learned Additional Solicitor General ably assisted by Mr. A
Siddharth S. Dave, Advocate for Appellant and Mr. Ram
Jethmalani learned Senior Counsel with Mr. S. Kapur, Advocate
and other Advocates for the respondent and have
microscopically examined the materials available on record.
B
23. The arguments of Mr. Raval are as follows:
a) Admittedly respondent was not holding any valid
Indian licence to drive a vehicle in India.
b) As per the evidence of (P.W.10) Dr. T. Milo, and c
(P.W.16) Dr. Madhulika, he was in an intoxicated
condition, at the time of accident.
c) He was driving a powerful machine like BMW in
excessive speed in a rash and negligent manner
and certainly beyond reasonable control over it. D
d) His negligence coupled with intoxication would lead
to culpable homicide with knowledge.
e) He knew that persons have been crushed and E
some of them were underneath his car, yet he
continued to drive the vehicle till all the injured were
disentangled from the vehicle.
f) He fled away from the scene of crime, did not
render any help to the injured. Not only this, he did F
not report the matter to the police and tried to
obliterate the evidence available.
g) Even if intention may not be attributed to him but at
least he had knowledge of what he had done, thus G
ingredients mandated under Section 304 Part II IPC
were fully met.
h) Thus, High Court committed grave error in
interfering with a well reasoned order of the Trial
H
936 SUPREME COURT REPORTS [2012] 12 S.C.R.
A Court. Respondent should thus be held guilty of
commission of offence under Section 304 Part II
IPC and sentence be awarded accordingly.
24. We have been taken through almost the entire
documentary and oral material evidence adduced by
8
prosecution. Following authorities have been cited by the
Appellant to show that such type of acts would fall precisely
under Section 304 Part II of the IPC and not under Section 304
A, as has been held by the learned Single Judge in the
impugned order.
c
25. These authorities are reported as under:
a) (1976) 1 SCC 889 State of Gujarat Vs. Haidarali
Kalubhai where distinction has been drawn with
D regard to case falling under Sections 304 A and
364 Part II of the IPC. In the said judgment, proper
and correct effect of Sections 299 and 300 of the
IPC has also been discussed. This judgment has
been followed by this Court in 2008 (1) SCC 791
Naresh Giri Vs. State of M.P.
E
b) (1981) 4 SCC 245 Ku/want Rai Vs. State of
Punjab, highlights main and basic ingredients of
Section 304 Part II.
F c) (2000) 5 SCC 82 Dalbir Singh Vs. State of
Haryana, has been cited to show that as far back
as in the year 2000, drunken driving was heavily
criticized and a warning was issued to all those who
may be in the habit, to be more careful and cautious.
It further went on to say that no benefit to the
G
accused found guilty, can be granted under the
Probation of Offenders Act, 1958.
d) (2004) 1 SCC 525 State of Maharashtra Vs.
Salman Salim Khan was cited to show that in
H identical circumstances where the accused was not
STATE TR. P.S. LODHI COLONY NEW DELHI v. 937
SANJEEV NANDA [DEEPAK VERMA, J.]
holding a valid motor driving licence and was under A
influence of alcohol, he would be held to have
committed offence under section 304 Part II of the
IPC.
e) The last in the series is (2012) 2 SCC 648 Alister B
Anthony Pareira Vs. State of Maharashtra to show
that this Court has already taken a stem view where
person involved in commission of such offence was
driving a vehicle in a drunken condition and has to
be dealt with severely so as to send proper and C
correct message to the society.
26. On the other hand, Mr. Ram Jethmalani, learned Senior
Counsel appearing for respondent/accused contended that
looking to the facts and features of the case and taking into
consideration the following mitigating circumstances, no case D
for interference is made out:
a) Offence was said to have been committed in the
year 1999, almost 13 years back.
b) Respondent was aged 21 years at that time, and E
was prosecuting his course in foreign country. He
had come to India on a short holiday.
c) He has already undergone the sentence of two
years awarded by High Court and only thereafter, F
after the period of limitation of filing the appeal had
expired, he got married to his long time love, now
they are blessed with a daughter.
d) His behaviour and conduct in jail was extremely G
good, which is evident from the two affidavits filed
in support of the respondent by two NGOs.
e) Fact cannot be given a go-by that it was a cold
wintry night of 9/10th January, 1999, thus possibility
H
938 SUPREME COURT REPORTS [2012] 12 S.C.R.
A cannot be ruled out that visibility must have been
poor due to fog.
f) He had neither any previous criminal record nor has
been involved in any criminal activity ever since then.
The case of Alister Anthony (supra) does not apply
B
to the feels of this case.
g) It was contended that respondent has already learnt
sufficient lesson at young age and no useful
purpose would be served, if he is sent to jail again.
c
h) The victim and/or families of deceased have been
paid handsome amount of compensation of Rs.65
lacs, in the year 1999 itself, i.e. Rs. 10 lacs each
to the families of the deceased and Rs.5 lacs to the
D injured.
i) It would not only be humiliating but great
embarrassment to the respondent, if he is again
sent to jail for little more period, over and above the
period of two years awarded and undergone. ·
E
j) He had neither intention nor knowledge of the
ultimate consequences of the offence said to have
been committed.
Learned Senior Counsel for the Respondent Mr. Ram
F Jethmalani further contended that it would not fall within the
parameters of Section 304 Part II, IPC. The impugned
judgment and order calls for no interference. Even otherwise,
looking to facts and features of the case, no case for taking
G any other view is made out.
27. After having critically gone through the evidence
available on record, we have no doubt in our mind that accident
had occurred solely and wholly on account of rash and negligent
driving of BMW car by the respondent, at a high speed, who
H was also intoxicated at that point of time. This fact has been
STATE TR. P.S. LODHI COLONY NEW DELHI v. 939
SANJEEV NANDA [DEEPAK VERMA, J.]
admitted by the Respondent-Accused at the Appellate stage A
in the High Court that at the relevant point of time, Respondent
was driving the vehicle and had caused the accident but even
then, it would be only his rash and negligent act, attracting
Section 304A of IPC only. Even though it is difficult to come to
the aforesaid conclusion, since he was in an inebriated B
condition. For the simple reason that he had already driven
almost 16 kms from the place where he had started, to the point
where he actually met with the accident without encountering
any untoward incident would not go absolutely in favour of the
Respondent. There is no evidence on record that they had c
consumed more liquor on their way also. No such material
objects were recovered from the vehicle, to suggest that even
while driving they were consuming liquor. One may fail to
understand if one could drive safely for a distance of 16 kms,
then whether the effect of intoxication would rise all of a sudden D
so as to find the respondent totally out of control. There is
nothing of that sort but it cannot be denied that he must have
been little tipsy because of the drinks he had consumed some
time back. It is, indeed, extremely difficult to assess or judge
when liquor would show its effect or would be at its peak. It E
varies from person to person.
28. As mentioned hereinabove, prosecution failed to use
either the Breath Analyser or Alco Meter to record a definite
finding in this regard. Evidence of (P.W.10) Dr. Milo and
(P.W.16) Dr. Madhulika shows that certain amount of alcoholic F
contents was still found on examination of his blood at 12.00
noon, next day.
29. It is a settled principle of law that if something is
required to be done in a particular manner, then that has to be
done only in that way or not, at all. In AIR 1936 PC 253 (2) G
Nazir Ahmad Vs. King Emperor, it has been held as follows:
"...... The rule which applies is a different and not less well
recognized rule, namely, that where a power is given to do
a certain thing in a certain way the thing must be done in
that way or not at all ....... " H
940 SUPREME COURT REPORTS [2012] 12 S.C.R.
A 30. It has also come on record that seven persons were
standing close to the middle of the road. One would not expect
such a group, at least, at that place of the road, that too in the
wee hours of the morning, on such a wintry night. There is every
possibility of the accused failing to see them on the road.
B Looking to all this, it can be safely assumed that he had no
intention of causing bodily injuries to them but he had certainly
knowledge that causing such injuries and fleeing away from the
scene of accident, may ultimately result in their deaths.
C 31. It is also pertinent to mention that soon after hitting one
of them, accused did not apply the brakes so as to save at least
some of the lives. Since all the seven of them were standing in
a group, he had not realized that impact would be so severe
that they would be dragged for several feet. Possibility also
cannot be ruled out that soon after hitting them, respondent, a
0
young boy of 21 years then, might have gone into trauma and
could not decide as to what to do until vehicle came to a halt.
He must have then realized the blunder he committed.
32. Respondent, instead of rendering helping hand to the
E injured, ran away from the scene, thus adding further to the
miseries of the victims. It is not a good trend to run away after
causing motor road accidents. An attempt should be made to
render all possible help, including medical assistance, if
required. Human touch to the same has to be given.
F
33. An aspect which is generally lost sight of in such cases
is that bodily injuries or death are as a consequence of
accidents. 'Accident' has been defined by Black's Law
Dictionary as under:
G
"Accident: An unintended and unforeseen injurious·
occurrence; something that does not occur in the usual
course of events or that could not be reasonably
anticipated."
H
STATE TR. P.S. LODHI COLONY NEW DELHI v. 941
SANJEEV NANDA [DEEPAK VERMA, J.]
Thus, it means, if the injury/death is caused by an accident, A
that itself cannot be attributed to an intention. If intention is
proved and death is caused, then it would amount to culpable
homicide.
34. It is to be noted that in Alister Anthony Pareira's case,
8
the earlier two judgments of this Court reported in (1976) 1 SCC
889 State of Gujarat Vs. Haidera/i Ka/ubhai, and 2008 (1) SCC
791 Naresh Giri Vs. State of M.P., both rendered by bench of
two learned Judges of this Court, were neither cited nor have
been referred to. Thus, the ratio decidendi of these cases has C
not at all been considered in Alister's case.
35. In the former case, it has been held in paras 4 and 5
as under:
"4. Section 304-A carves out a specific offence D
where death is caused by doing a rash or negligent act
and that act does not amount to culpable homicide under
Section 299 IPC or murder under Section 300 IPC. If a
person wilfully drives a motor vehicle into the midst of a
crowd and thereby causes death to some persons, it will E
not be a case of mere rash and negligent driving and the
act will amount to culpable homicide. Each case will,
therefore, depend upon the particular facts established
against the accused.
5. The prosecution in this case wanted to establish a F
motive for committing the offence against the sarpanch. It
was sought to be established that there was enmity
between the sarpanch and the accused and his relations
on account of panchayat elections. Some evidence was
led in order to prove that the accused and his relations G
were gunning against the sarpanch for some time after the
latter's election as sarpanch. Even an anonymous letter
was received by the sarpanch threatening his life which
was handed over to the police by the sarpanch. Both the
Sessions Judge as well as the High Court did not accept H
942 SUPREME COURT REPORTS (2012] 12 S.C.R.
A the evidence appertaining to motive. Mr. Mukherjee,
therefore, rightly and very fairly did not address us with
regard to that part of the case. Even so, the learned
Counsel submits that the act per se anq,Ahe manner in
which the vehicle was driven clearly brought the case under
B Section 304 Part II IPC."
It is further held in the same judgment at para 10 as under:
"10. Section 304-A, by its own definition totally
excludes the ingredients of Section 299 or Section 300,
C l.P.C. Doing an act with the intent to kill a person or
knowledge that doing of an act was likely to cause a
person's death are ingredients of the offence of culpable
homicide. When intent or knowledge as described above
is the direct motivating force of the act complained of,
D Section 304 A has to make room for the graver and more
serious charge of culpable homicide."
It is interesting to note that this judgment had been a sheet
anchor of arguments of both the learned senior counsel
E appearing for parties. They have read it differently and have
tried to put different interpretations to the same.
In the latter case of Naresh Giri it has been held in the Head
note as under:
F "Section 304 A IPC 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. Section 304 A applies only to such acts which
are rash and negligent and are directly the cause of death
G
of another person. Negligence and rashness are essential
elements under Section 304-A.
Section 304 A carves out a specific offence where
death is caused by doing a rash or negligent act and that
H act does not amount to culpable homicide under Section
STATE TR.· P.S. LODHI COLONY NEW DELHI v. 943
SANJEEV NANDA [DEEPAK VERMA, J.]
299 or murder under Section 300. If a person willfully A
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 B
a person's death is culpable homicide. When 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."
We may profitably deal with definition of 'Reckless' as
c
defined in Lexicon, which reads as under:-
"Characterized by the creation of a substantial and
unjustifiable risk of hann to others and by a conscious (and
sometimes deliberate) disregard for or indifference to that D
risk; heedless; rash. Reckless conduct is much more than
mere negligence: it is a gross deviation from what a
reasonable person would do. (Black, 7th Edn. 1999)
Intention cannot exist without foresight, but foresight E
can exist without intention. For a man may foresee the
possible or even probable consequences of his conduct
and yet not desire them to occur; none the less if he
persists on his course he knowingly runs the risk of
bringing about the unwished result. To describe this state F
of mind the word "reckless" is the most appropriate."
36. For our own benefit it is appropriate to reproduce
Section 304 of the IPC, which reads thus:
"304. Punishment for culpable homicide not amounting to G
murder-
Whoever commits culpable homicide not amounting to
murder shall be punished with imprisonment for life, or
imprisonment of either description for a term which may
H
944 SUPREME COURT REPORTS [2012] 12 S.C.R.
A extend to ten years, and shall also be liable to fine, if the
act by which the death is caused is done with the intention
of causing death, or of causing such bodily injury as is likely
to cause death,
or with imprisonment of either description for a term
B
which may extend to ten years, or with fine, or with both, if
the act is done with the knowledge that it is likely to cause
death, but without any intention to cause death, or to cause
such bodily injury as is likely to cause death."
c 37. Critical and microscopic analysis thereof shows that
once knowledge that it is likely to cause death is established
but without any intention to cause death, then jail sentence may
be for a term which may extend to 10 years or with fine or with
both.
D
38. Now, we have to consider if it is a fit case where
conviction should be altered to Section 304 Part II of IPC and
sentence awarded should be enhanced.
39. We are of the considered view that looking to the nature
E and manner in which accident had taken place, it can safely
be held that he had no intention to cause death but certainly
had the knowledge that his act may result in death.
40. Thus, looking to the matter from all angles, we have
F no doubt in our mind that knowle.dge can still be attributed to
accused Sanjeev that his act might cause such bodily injuries
which may, in ordinary course of nature, be sufficient to cause
death but certainly he did not have any intention to cause death.
He was not driving the vehicle with that intention. There is
G nothing to prove that he knew that a group of persons was
standing on the road he was going to pass through. If that be
so, there cannot be an intention to cause death or such bodily
injury as is likely to cause death. Thus, in our opinion, he had
committed an offence under Section 304 Part II IPC. We
H accordingly hold so.
STATE TR. P.S. LODHI COLONY NEW DELHI v. 945
SANJEEV NANDA [DEEPAK VERMA, J.]
41. Now the greater question that arises for consideration A
is if sentence deserves to be suitably enhanced or the same
can be maintained as awarded by the High Court, the period
which the Respondent has already undergone.
42. To do complete justice between the parties we have 8
to weigh aggravating and mitigating circumstances to find out
on which side justice tilts more.
43. In fact, the aggravating and mitigating circumstances
have been mentioned in detail in the preceding paras. We have
given our serious thought to the whole matter and are of the C
considered opinion that mitigating circumstances as mentioned
in para 26 hereinabove are heavier than the aggravating
circumstances. The balance of justice tilts more in favour of
the accused.
D
44. In the case in hand, no useful purpose is going to be
served by sending the respondent accused Sanjeev Nanda to
jail once again. Even though in the facts and circumstances of
the case, jail sentence awarded to him may not be just and
appropriate but as mentioned hereinabove, the mitigating E
circumstances tilt heavily in favour of the accused.
45. In the light of the aforesaid discussion, the appeal is
partly allowed. The judgment and order of conviction passed
by Delhi High Court is partly set aside and the order of
conviction of Trial Court is restored and upheld. Accused is F
held guilty under Section 304 Part II of the IPC. Looking to the
facts and circumstances of the same, we deem it appropriate
to maintain the sentence awarded by the High Court, which he
has already undergone. However, we make it clear that this
has been held so, looking to very peculiar facts and features G
of this particular case and it may not be treated as a precedent
of general proposition of law on the point, for other cases.
46. Appeal stands allowed to the aforesaid extent.
Accused has already undergone the sentence awarded to him H
946 SUPREME COURT REPORTS [2012] 12 S.C.R.
A by the High Court. Thus, he need not undergo any further
sentence.
ORDER
1. Delay condoned.
B
2. Leave granted.
3. In the light of separate judgments pronounced by us
today, the judgment and order of conviction passed by Delhi
C High Court under Section 304A of the Indian Penal Code (IPC)
is set aside and the order of conviction of Trial Court under
Section 304 Part II of the l.P.C. is restored and upheld.
However, we deem it appropriate to maintain the sentence
awarded by the High Court, which the accused has already
D undergone.
4. In addition, the accused is put to the following terms:
(1) Accused has to pay an amount of Rs.50 lakh (Rupees
Fifty lakh) to the Union of India within six months, which will
E be utilized for providing compensation to the victim of
motor accidents, where the vehicle owner, driver etc. could
not be traced, like victims of hit and run cases. On default,
he will have to undergo simple imprisonment for one year.
This amount be kept in a different head to be used for the
aforesaid purpose only.
F
(2) The accused would do community service for two years
which will be arranged. by the Ministry of Social Justice and
Empowerment within two months. On default, he will have
to undergo simple imprisonment for two years.
G
The Appeal is accordingly allowed in terms of the
judgments and this common order.
K.K.T. Appeal Partly allowed.
H
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