Judicial approach in dealing with cases of homicide caused by road accidents

Judicial approach in dealing with cases ofHomicide caused by road accidents.

2014

INDIAN LAW INSTITUTE

Assignment

Judicial approach in dealing with cases of Homicide caused by Road

Accidents.

Submitted by:

Sukriti Yagya sen

LLM/09/ 2014

INDIAN LAW INSTITUTE

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Table of Content1.(i)(ii)(iii)

IntroductionRoad accidents: overviewPresent conditionInclination of judges: to givegraver punishment or lesser

2. Cases of Homicide caused by Road accidents: Whether Culpable Homicide or Homicide(i)Provision (ii) Res Ipsa Loquitur (iii) Statics of road accidents(iv) Various Judgments showingthe judicial approach to the cases of Homicide caused by road accident

3. Conclusion- Judicial approach is basically to 1. treat these kinds of

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offences as grave offences and punish the offender

2. Court for giving grater punishment brought the road rash case within the ambit of section 299.

3. Compounding is also allowed

1. Introduction

(i) Road accidents: Overview

“More people die of road accidents than by most diseases, so much so the Indian highways

are among the top killers of the country.”1

Road accidents have become the order of the day. Since a decade this

problem has been posing a serious threat to the survival of mankind.

There is no day where a news paper does not refer to an accident or

death.2 There are various causes due to which road accidents are

being caused. Like the lack of care as should be taken by the driver

and the carelessness of victim sometimes. Then the accident causes

1 Hon’ble justice Krishna Iyyer.2 Sri C. Madhusudan rao, “Road accidents and new legislation”.

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the death of the victim then it becomes an important factor to know

that what kind of punishment should be given to the accused.

It is day by day increasing problem that road accidents are

increasing and the reason for the death of people is poor condition

of road thus leading to road accidents. The researcher will try to

study in this paper the approach of the judiciary that how the

judges are dealing with the cases of homicide caused by road

accidents. Whether they are dealing those cases under “Rash and

Negligent act” or “Homicide caused with the knowledge”. This paper

will also study various cases in which the courts have dealt with

the cases and what has been their approach.

(ii)Present Scenario:

India has one of the largest road networks in the world, of

3.314 million kilometers, consisting of National Highways,

Expressways, State Highways, Major District Roads, Other District

Roads and Village Roads. About 65 per cent of freight and 86.7 per

cent passenger traffic is carried by the roads. Roads are used not

only by the motorized transport, but also by the non-motorized

transport as well as pedestrians. More than 100,000 Indians are

dying every year in road accidents. More than a million are injured

or maimed. Many years ago, a study found that road accidents cost

the country some Rs. 550 billion every year. India’s share in world

fatalities is increasing. So far, China topped the list of most

number of fatal road accidents and India finished a close second.

However, the latest statistics show that while China has managed to

decrease its fatalities, India has not learnt much. The total road

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length of India is about 12 per cent of the total world road

network, but India’s percentage in road injury is 5.4 per cent of

the world total.3

Thus this is the present condition that how the accidents

are being caused. This also tells us that due to increase in the

roads the tendency to road accidents has been also increased.

(iii) Inclination of judges:

This paper will also study that what is the inclination of judges and

how they are dealing with these cases. Are the judges are more inclined

to give deterrent punishment or the punishment of lesser nature. We

have seen that in various cases as that has been the case of road

accident but still the court has dealt that case as homicide under

section 299 last part(the knowledge part). The court has imputed

knowledge on the driver and then punished under the section 304 part

II.

Then automobiles have become death traps any leniency shown to drivers

who are found guilty of rash driving would be at the risk of further

escalation of road accidents. All those who are manning the steering of

automobiles, particularly professional drivers, must be kept under

constant reminders of their duty to adopt utmost care and also of the

consequences befalling them in cases of dereliction. One of the most

effective ways of keeping such drivers under mental vigil is to

maintain deterrent element in sentencing sphere. Any latitude shown to

them in that sphere would tempt them to make driving frivolous and

3 Law Commission of India, 234th report on Legal reforms to combat RoadAccidents(August, 2009).

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frolic.4 Thus we see that the judges are becoming more inclined in

dealing cases of road rash with the deterrent punishment.

Is it due to lack of apt provisions in our law that travel through

Indian roads is a tryst with Death? This crucial question has been

engaging the attention of the Law Commission of India for quite some

time.5 We notice that there is lack of provision on this point in our

Indian Penal Code and the only one provision which covers this aspect

is section 304A and that provides only for maximum of 2 years

imprisonment.

In State of Karnataka v. Krishna alias Raju, 1987 CriL J776 (SC) this

Court did not allow a sentence of fine, imposed on a driver who was

convicted under Section 304A IPC to remain in force although the High

Court too had confirmed the said sentence when an accused was convicted

of the offence of driving a bus callously and causing death of a human

being. In that case this Court enhanced the sentence to rigorous

imprisonment for six months besides imposing a fine. So, judges do often

give punishment for homicide caused by road accident under section 304

part II. This has been part of various judgment and they inclined to

give graver punishment on such cases. Thus we can safely conclude that

judges are inclined to give graver punishment to the accused that caused

homicide by road accident.

2. Cases of Homicide caused by Road accidents: Whether

Culpable Homicide or Homicide

4 K.T. Thomas, J in Dalbir singh v. State of Haryana (AIR 2000 SC 1677).5 Law Commission of India, 234th report on Legal reforms to combat RoadAccidents(August, 2009).

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It has been a question that whether the cases of homicide could be

considered as culpable homicide or not. How do judges treat them? This

paper will study various judgments in which the court has decided on the

above point.

(i) Provision related to cases of Road accidents :

Sections 279, 304A, 336, 337, 338, IPC are relevant and reproduced

below:

Section 279. Rash driving or riding on a public way.

“Whoever drives any vehicle, or rides, on any public way in a

manner so rash or negligent as to endanger human life, or to

be likely to cause hurt or injury to any other person, shall

be punished with imprisonment of either description for a

term which may extend to six months, or with fine which may

extend to one thousand rupees, or with both.”

Section 304A. Causing death by negligence. “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 with both.”

Section 336. Act endangering life or personal safety of

others. “Whoever does any act so rashly or negligently as to

endanger human life or the personal safety of others, shall

be punished with imprisonment of either description for a

term which may extend to three months, or with fine which may

extend to two hundred and fifty rupees, or with both.”

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Section 337. Causing hurt by act endangering life or personal

safety of others. “Whoever causes hurt to any person by doing

any act so rashly or negligently as to endanger human life,

or the personal safety of others, shall be punished with

imprisonment of either description for a term which may

extend to six months, or with fine which may extend to five

hundred rupees, or with both.”

Section 338. Causing grievous hurt by act endangering life

or personal safety of others. “Whoever causes grievous hurt

to any person by doing any act so rashly or negligently as

to endanger human life, or the personal safety of others,

shall be punished with imprisonment of either description

for a term which may extend to two years, or with fine which

may extend to one thousand rupees, or with both.”6

In all the above provision we find that rashness and negligence

are common elements found in each provision. A rash act is

primarily an overhasty act, opposed to a deliberate act, but it

also includes an act which, though it may be said to be

deliberate, is yet done without due deliberation and caution. In

rashness, the criminality lies in running the risk of doing an

act with recklessness or indifference to consequences. Negligence

means breach of duty caused by omission to do something which a

reasonable man guided by those considerations which ordinarily

regulate conduct of human affairs would do or doing something

which a prudent or reasonable man would not do. Culpable

6 Indian penal code, 1860.8


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negligence is acting without consciousness that illegal or

mischievous effects will follow, but in circumstances which show

that the actor has not exercised the caution incumbent on him,

and that if he had, he would have had the consciousness.

Generally, in the case of rashness, the guilty person does an act

and breaks a positive duty; in the case of negligence, he does

not do an act which he was bound to do, because he adverts not to

it. ‘Rashness’ conveys the idea of recklessness or the doing of

an act without due consideration; ‘negligence’ connotes want of

proper care or the standard of conduct which a reasonably prudent

person would exercise in a similar situation.7

In the offence under section 304A, IPC where death is caused by

rash and negligent act of driving of a motor car, negligence

consists of two factors (a) speed (b) failure to apply the breaks

in time. Both as regards the civil and criminal liability the rate

of speed which will be considered dangerous varies with nature,

condition and use of particular highway and amount of traffic

which actually is or may be expected to be on it. The driver of

the vehicle must drive at a speed that will permit of his stopping

or deflecting his course within the limits of his vision. It is

the duty of the driver whatever means are at hand to avid

collision. The most oblivious means are to apply breaks with which

the car must be equipped. It will constitute culpable negligence

if driver drives vehicle with patently defective brakes or fails

to apply the brakes in time.8

7 Law Commission of India, 234th report on Legal reforms to combat RoadAccidents(August, 2009).8 V. B. Raju,Commentaries on Indian penal code 1124.

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Thus the report has tried to explain that what is rashness or

negligence we may also say that rashness is a kind of knowledge.

Knowledge is divided in three categories or degrees by Devlin J.9

These categories were as follows:

Actual Knowledge: inferred from the conduct of the person.

Person having mental cognition of facts and circumstances then

that knowledge is considered as the actual knowledge. This is

considered as the first degree knowledge.

Willful Blindness: When the person deliberately refrains from

making inquiry on possible consequence. This is considered as

recklessness or the second degree of knowledge.

Constructive knowledge: when the person fails unintentionally

to make inquiry which a reasonable person would have made. 10

Person is reckless where a person unintentionally fails. He fails

basically to the standard of behavior which is expected from him.

Thus he is punished for that failure. In the same way section 304

A deals with the cases of second degree and third degree of

knowledge. Section 304 A deals with “Rash or Negligent act”, it is

either rash or negligent not rash and negligent. While doing rash

act if person can foresee consequence then we can attribute

existence of knowledge then those cases are excluded. Under

section 304 A they wanted to only cover those cases which are not

covered under section 299. If requirement of section 299 are not

9 This classification was made by him in case of Ropar v. Taylor. That classification isyet being followed to understand the intricacies of the provisions sometimes.10 This classification was made by Devlin j but this does not find any place in criminallaw it is found in civil law. It is considered as negligence in civil law.

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satisfied then case can be dealt under less severe punishment of

304 A. Thus there is slight distinction in both the cases that

whether it would be as culpable homicide or just homicide. It is

the rashness or negligence which plays important role here.

Section 299 talks about objective knowledge and it do not speak

about causing death by rash and negligent act.

Supreme Court in various cases has decided that the punishment

provided for this section is not adequate and despite being the

mental element absent court has treated the cases under section 299

clause c. This has been done by court as they wanted to provide

adequate punishment. The main point to be discussed here is that

the case of homicide caused by road accident will amount to

homicide not culpable homicide but due to insufficiency of

punishment judges have evolved a doctrine to provide for graver

punishments as per the facts and circumstances of the case and also

they have started bringing the case within the ambit of section

299.

The section provides punishment of either description for

a term which may extend to two years, or fine, or both in

cases of homicide by rash or negligent act. The Law

Commission of India in 1971 on the basis of a strong

demand for the increase in punishment for offences under

this section recommended for enhancement of sentence of

imprisonment up to five years.11

11 Law Commission of India, 42nd Report (1971). 11


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(ii) Res Ipsa Loquitur

In Thakur Singh v. State of Punjab,12 the appellant was driving a bus

carrying 41 passengers. While crossing a bridge fell into a nearby

canal resulting in death of passengers. He was found guilty under

section 304 A for causing death by rash and negligent driving. In

appeal before supreme court he challenged contended his conviction

under section 304 A, IPC on the ground that prosecution has not

proved negligence on his part. Dismissing the appeal apex court held

that in the facts of this case the doctrine of res ipsa loquitur came into

play and onus of proof shifted to the person who was in control of

the automobile to establish that accident did not happen on account

of negligence on his part. Since the accused has not succeeded in

showing that the accident happened due to causes other than

negligence on his part, his conviction could not be faulted. 13

The court in Dalbir singh14 held that in view of galloping trend in road

accidents in India and the devastating consequence that visits and

victims and their families, courts can not treat the nature of

offence under section 304A, IPC attracting the benevolent provisions

of section 4 of the Probation of Offenders Act. The court in Thakur

singh15 case by citing Dalbir singh emphasized need for providing

deterrent punishment to those causing death by rash or negligent

driving of automobiles.16

12 [(2003) 9 SCC 208].13 K D Gaur, Commentary on Indian Penal Code 898 (Universal Law Publishing Co. 2006).14 (AIR 2000 SC 1677).15 [(2003) 9 SCC 208].

16K D Gaur, Commentary on Indian Penal Code 898 (Universal Law Publishing Co. 2006). 12


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In Syad Akbar17court held that maxim can be applied when in case of

criminal negligence only when the cause of accident is unknown. But

when the accident was caused due to error of judgement and in spite

of driver’s best precaution this doctrine could not be invoked.

(iii)Statics of Road Accidents:

In India more than 40,000 people died in year 1986 and 1,75,000

injured crippled and total number of mishaps stood at about 2.10

lakhs.18 According to ‘Down To Earth’ (Science and Environment

Online), ill-planned motorization kills one person every six minutes

on India’s roads. Road accidents in 1999-2000 cost India about 3 per

cent of its GDP. During 1970-2005, registered motor vehicles

increased 50 times, but road networks grew less than three times.

Accidents increased fourfold; injuries and fatalities also shot up

more than six times. Severity of accidents – persons killed per 100

accidents – increased due to lack of footpaths, cycle tracks and

traffic measures to check speed where motorized merges with non-

motorized. In 2005, there were 439,255 road accidents – 1,205

accidents daily – which killed about 95,000 people; injuring more

than 465,282. National and State Highways account for 5.8 per cent

of the total road length, but account for 50 per cent of the total

accidents. Other roads, with 94.2 per cent of the total road length,

witnessed 46.8 per cent of the total accidents. Bulk transport

vehicles (buses, trucks) make up 7.5 per cent of all registered

17 Syad Akbar v. State of Karnataka (1979).18 Amarlal v state of Rajasthan, 1988 ACJ 1005.

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vehicles, but caused 30 per cent of the accidents; about 38 per cent

of deaths.19

The Pioneer has reported that the number of fatalities on Indian

roads in 2006-07 increased to 1,05,749. India’s share in world

fatalities is increasing. So far, China topped the list of most

number of fatal road accidents and India finished a close second.

However, the latest statistics show that while China has managed to

decrease its fatalities, India has not learnt much. The total road

length of India is about 12 per cent of the total world road

network, but India’s percentage in road injury is 5.4 per cent of

the world total.20 According to the Indian Express, road accidents

increased in the country by 4.9 per cent from 2005 to 2006 and 20

per cent of the road accidents were fatal – there was one fatality

per 4.4 road accidents.21 A recent survey by the Central Road

Research Institute reveals that more than 90% pedestrians feel

unsafe while crossing roads, while they comprise more than 50% of

road victims.22

Thus the above readings show that how the road accidents have become

so fatal and how they are causing so much of deaths of individuals and

in that case the seriousness of offence is determined by these statics

and hence it could be said that judges are giving harder punishments

although they are cases of homicide and not culpable homicide.

19http://www.downtoearth.org.in.20The Pioneer, New Delhi, 24.03.2008. 21 The Indian Express, New Delhi, 24.04.2008.22 The Times of India, New Delhi, 27.06.2008.

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(iv)Various Judgments: how the judges have dealt with the cases of

road rash:

There are various judgments which propounded about the point that

homicide caused by road accidents should be dealt with graver

punishments. It though is yet treated under section 304A, IPC but

still it could be brought within the ambit of section 299 by imputing

knowledge upon the accused.

I. Court punished the accused with grave punishment:

Judges have got a approach to deal with the cases. Judges do consider

the rash act of driving very negligent and in cases they have brought

the case within the ambit of section 299 and punished the accused

under 304 part II.

Allister pareira v. State of Maharashtra23

In Empress of India v. Idu Beg 1881 (3) All 776, Straight J.,

explained the meaning of criminal rashness and criminal negligence in

the following words: criminal rashness is hazarding a dangerous or

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

injury but without intention to cause injury, or knowledge that it

will probably be caused. The criminality lies in running the risk of

doing such an act with recklessness or indifference as to the

consequences. Criminal negligence is the gross and culpable neglect

or failure to exercise that reasonable and proper care and precaution

to guard against injury either to the public generally or to an

individual in particular, which, having regard to all the

23[(2012)2 SCC 648]. 15


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circumstances out of which the charge has arisen, it was the

imperative duty of the accused person to have adopted. This meaning

is assigned to rashness and negligence in the present case also.

Rash or negligent driving on a public road with the knowledge

of the dangerous character and the likely effect of the act and

resulting in death may fall in the category of culpable

homicide not amounting to murder. A person, doing an act of

rash or negligent driving, if aware of a risk that a particular

consequence is likely to result and that result occurs, may be

held guilty not only of the act but also of the result. As a

matter of law - in view of the provisions of the Indian Penal

Code - the cases which fall within last clause of Section 299

but not within clause 'fourthly' of Section 300 may cover the

cases of rash or negligent act done with the knowledge of the

likelihood of its dangerous consequences and may entail

punishment under Section 304 Part II Indian Penal Code. Section

304A Indian Penal Code takes out of its ambit the cases of

death of any person by doing any rash or negligent act

amounting to culpable homicide of either description.24

Thus this is how they bring the case of rashness within the ambit of

culpable homicide not amounting to murder and thus punishing them

under part II of section 304. They even further say that if the scope

of these acts is further broadened then they could be brought under

the section 300 fourthly. Hence providing punishment for that under

24 Para 40.16


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section 302. So in a way it proves that there is a vast descreation

that exists.

Dalbir singh v. State of Haryana25

Then automobiles have become death traps any leniency

shown to drivers who are found guilty of rash driving

would be at the risk of further escalation of road

accidents. All those who are manning the steering of

automobiles, particularly professional drivers, must be

kept under constant reminders of their duty to adopt

utmost care and also of the consequences befalling them

in cases of dereliction. One of the most effective ways

of keeping such drivers under mental vigil is to

maintain deterrent element in sentencing sphere. Any

latitude shown to them in that sphere would tempt them

to make driving frivolous and frolic.26

Thus in the instant judgement also court remained of the opinion that

the graver punishment should be awarded and in the same way did not

allowed section 4 of probation of offender’s act and held that

Bearing in mind the galloping trend in road

accidents in India and the devastating consequences

visiting the victims and their families, criminal courts

cannot treat the nature of the offence under Section 304A

IPC as attracting the benevolent provisions of Section 4

of the PO Act. While considering the quantum of sentence,25 [(2000) 5 SCC 82].26 Justice K. T. Thomas said in the present judgement about the seriousness of theoffence.

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to be imposed for the offence of causing death by rash or

negligent driving of automobiles, one of the prime

considerations should be deterrence. A professional

driver pedals the accelerator of the automobile almost

throughout his working hours. He must constantly inform

himself that he cannot afford to have a single moment of

laxity or inattentiveness when his leg is on the pedal of

a vehicle in locomotion. He cannot and should not take a

chance thinking that a rash driving need not necessarily

cause any accident; or even if any accident occurs it

need not necessarily result in the death of any human

being; or even if such death ensues he might not be

convicted of the offence; and lastly that even if he is

convicted he would be dealt with leniently by the court.

He must always keep in his mind the fear psyche that if

he is convicted of the offence for causing death of a

human being due to his callous driving of vehicle he

cannot escape from jail sentence. This is the role which

the courts can play, particularly at the level of trial

courts, for lessening the high rate of motor accidents

due to callous driving of automobiles.

Guru Basavaraj @ Benne Settappa v. State of Karnataka27

In the instant case also court remained of the rigid nature in

giving punishment to the accused that if the offence of road

accident is being committed then the court should be strict while

272012 (8) SCALE 47. 18


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awarding the punishment and it should not apply any lenient

approach. In the instant case the various mitigating circumstances

were given by the accused and thus he wanted that his sentence

should be reduced to the period of whatever he is undergone. Court

dismissed the appeal and relied on various cases and held that

“Weighing the individual difficulty as against the social order,

collective conscience and the duty of the Court, we are disposed to

think that the substantive sentence affirmed by the High Court does

not warrant any interference and, accordingly, we concur with the

same.”

Naresh giri v. state of M. P.28

Conviction of accused under section 304 A as there was no intention

to cause accident so charge framed under section 302 got altered.

Court at length discussed about the negligence. Court discussed

that what criminal negligence and in discussing that court quoted

Kenny's Outlines of Criminal Law, 19th Edition (1966) at page 38

Yet a man may bring about an event without having

adverted to it at all, he may not have foreseen that

his actions would have this consequence and it will

come to him as a surprise. The event may be harmless

or harmful, if harmful, the question rises whether

there is legal liability for it. In tort, (at common

law) this is decided by considering whether or not a

reasonable man in the same circumstances would have

realised the prospect of harm and would have stopped

28 2007 (13) SCALE 7.19


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or changed his course so as to avoid it. If a

reasonable man would not, then there is no liability

and the harm must lie where it falls. But if the

reasonable man would have avoided the harm then there

is liability and the perpetrator of the harm is said

to be guilty of negligence. The word 'negligence'

denotes, and should be used only to denote, such

blameworthy inadvertence, and the man who through his

negligence has brought harm upon another is under a

legal obligation to make reparation for it to the

victim of the injury who may sue him in tort for

damages. But it should now be recognized that at

common law there is no criminal liability for harm

thus caused by inadvertence. This has been laid down

authoritatively for manslaughter again and again.

There are only two states of mind which constitute

mens rea and they are intention and recklessness. The

difference between recklessness and negligence is the

difference between advertence and inadvertence they

are opposed and it is a logical fallacy to suggest

that recklessness is a degree of negligence The common

habit of lawyers to qualify the word "negligence" with

some moral epithet such as wicked' `gross' or

`culpable' has been most unfortunate since it has

inevitably led to great confusion of thought and of

principle. It is equally misleading to speak of

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criminal negligence since this is merely to use an

expression in order to explain itself.

Thus court after elaborating the difference between recklessness and

negligence made the case fall within the ambit of section 304 A and

thus convicted accordingly.

State of Punjab v. Balvinder singh and others29

In the present judgement the gravity of the offence was considered

and the fine of 25,000 and imprisonment of 15 days was altered it was

made as six months rigorous imprisonment.

To bring a case of homicide under Section 304A, I.P.C.,

the following conditions must exist, namely :

(1) There must be death of the person in question ;

(2) The accused must have caused such death ; and

(3) That such act of the accused was rash or negligent

and that it did not amount to culpable homicide.

It is settled law that sentencing must have a policy of

correction. If anyone has to become a good driver, must

have a better training in traffic laws and moral

responsibility with special reference to the potential

injury to human life and limb.

While considering the quantum of sentence to be imposed

for the offence of causing death or injury by rash and

negligent driving of automobiles, one of the prime

29[(2012) 2 SCC 182]. 21


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considerations should be deterrence. The persons driving

motor vehicles cannot and should not take a chance

thinking that even if he is convicted, he would be dealt

with leniently by the Court. For lessening the high rate

of motor accidents due to careless and callous driving of

vehicles, the Courts are expected to consider all

relevant facts and circumstances bearing on the question

of sentence and proceed to impose a sentence commensurate

with the gravity of the offence if the prosecution is

able to establish the guilt beyond reasonable doubt.

B. Nagabhushanam v. State of Karnataka30

Appellant killed child in the road accident then he was given punishment

and thus accordingly court relied on the Dalbir singh’s judgement and held

that the punishment is not shocking and it should be maintained. Hence

we further find that the court has always been in favour of graver

punishment and strict provision for these offences.

Paul George Vs. State of N.C.T. of Delhi31

Appellant, carrying an urgent message from a Police Station to the

Police Head Quarters, crossed the road divider and hit a vehicle on the

other side resulting in the death of the pillion rider. Court held

“Jumping road divider which had caused the accident was not a matter

within the colour of duty.” Hence appellant was convicted but although

he was relieved as per section 4 of Probation of offender’s act due to

30 ([2008) 5 SCC 730].31 [(2008) 4 SCC 185].

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his good carrier and other factors for meeting the ends of justice as

stated by the judge.

II. Court left to legislature for enhancing the punishment

and did not gave more than statutory limitation:

Prabhakaran v. State of Kerala32

In this case court discussed about various implications of these road

accident and also held that this is very harmful for the society but

the maximum punishment for this kind of act falling within the ambit of

304 A could be only of 2 years and not more than that. Court said that

it is the matter of the legislature to make laws more stringent

regarding this provision. Court also suggested that this is the problem

of developing countries and it should be properly addressed by the

legislature. Hence the conviction of the lower court under section 304

II was altered and it was made as 2 years in the following words.

It is contended by the learned Counsel for the State that in a case of

this nature two years sentence is grossly inadequate. There is

substance in this submission considering the increasing number of

vehicular accidents resulting in death of large number of innocent

persons. It is for the legislature to provide for an appropriate

sentence. But the statute presently provides for a maximum sentence of

two years.

Braham Dass v. State of H. P.33

In the given judgement the accused was aquitted as the evidence

were not sufficient to prove the element of rashness or32[(2007) 14 SCC 269]. 33 [(2009) 7 SCC 353].

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negligence. Hence court held that the accused should be

acquitted.

III. Court granted compensation in lieu of imprisonment as for

the ends of justice:

Azeez v. State of Kerala34

Held, Appellant had undergone a part of the sentence and had agreed to

pay compensation. Complainant had no objection if the Appellant was

released on the sentence. Ends of justice would meet if the amount of

Rs. 2 lakhs, with interest, was directed to be paid to the complainant

and thus it was accordingly ordered and thus we see that this is the

different kind of approach of judges in dealing with cases of road rash.

IV. Court allowed for compounding of offence although it is non

compoundable offence:

Puttaswamy v. State of Karnataka and anr.35

"In order to meet with situation Court preferred to strike a balance

between rigidity of law and doing substantial justice"

Thus court ordered for compounding the offence of 304 A even though it

is not compoundable and gave the above said reasoning. Court increased

the compensation and thus allowed the accused to be imprisonment to the

period already undergone. So we can in a way say that it all depends o

the discretion of the judge that how do they treat a offence to meet the

ends of justice.

34 2011 (4) SCALE 241.35 [(2009) 1 SCC 711].

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3.

Conclusion

Section 304A applies only to such acts which are rash and negligent and

are directly the cause of death of another person.36 Thus in the other

cases if act is rash and negligent and it is not only the proximate

cause of death but it should be the direct consequence of death.

While considering the quantum of sentence to be imposed for the offence

of causing death by rash or negligent driving of automobiles, one of the

prime considerations should be deterrence.37 Punishment should be of

graver nature so that it may create an effect of deterrence in the

society.

In Syed Akbar v. State of Kamataka,38 it was held that "where negligence is an

essential ingredient of the offence, the negligence to be established by

the prosecution must be culpable or gross and not the negligence merely

based upon an error of judgment.

As the cases above show that the judges have always inclined to give

graver punishment for the offence of homicide caused by road accidents.

They have in various judgments said that the punishment should be of

such a nature that it should deter the other persons from committing

such an act again. Courts have also come up with the decision and said

that the legislature should come up with certain laws so that the graver

punishment should be given to the accused.

36 Kuldeep Singh Vs. State of Himachal Pradesh, 2008(10)SCALE64.37 Dalbir singh v. State of Haryana (AIR 2000 SC 1677).38 1979 Cri LJ 1374 (SC).

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In various cases as we have seen that even though the offence is not

compoundable within section 320 of Cr. P. C. but even though for meeting

the ends of justice the court has compounded the offence.

In my opinion as suggested by the committee this section needs amendment

and the punishment under this section shall be increased from just 2

years to atleast 5 years.

Bib

liography

Books:

1. V.B.

Raju, Commentary on Indian Penal Code,1860 (1982).

2. K D Gaur,Commentary on Indian Penal Code 898 (Universal Law Publishing

Co. 2006).

3. Kenny and turner, Outlines of criminal law (Oxford university press,2004).

4. Turner, J.W.C., Russel on Crime Vol.1(Stevens and Sons Limited, 1964).

Articles:

5. Sri C. Madhusudan rao, “Road accidents and new legislation”.

Reports:

6. Law Commission of India, 234th report on Legal reforms to combat Road

Accidents(August, 2009).

7. Law Commission of India, 42nd Report (1971).

Case laws:26


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8. Allister pareira v. State of Maharashtra, [(2012)2 SCC 648].

9. Guru Basavaraj @ Benne Settappa v. State of Karnataka, 2012 (8)

SCALE 47.

10. Naresh giri v. state of M. P., 2007 (13) SCALE 7.

11. State of Punjab v. Balvinder singh and others, [(2012) 2 SCC 182].

12. Prabhakaran v. State of Kerala, [(2007) 14 SCC 269].

13. Braham Dass v. State of H. P., [(2009) 7 SCC 353].

14. Paul George Vs. State of N.C.T. of Delhi, [(2008) 4 SCC 185].

15. B. Nagabhushanam v. State of Karnataka, [(2008) 5 SCC 730].

16. Puttaswamy v. State of Karnataka and anr., [(2009) 1 SCC 711].

17. Azeez v. State of Kerala, 2011 (4) SCALE 241.

18. Kuldeep Singh Vs. State of Himachal Pradesh, 2008(10)SCALE64.

19. Amarlal v state of Rajasthan, 1988 ACJ 1005.

20.Thakur Singh v. State of Punjab, [(2003) 9 SCC 208].

21. Syad Akbar v. State of Karnataka (1979).

22.State of Karnataka v. Krishna alias Raju, 1987 CriL J776 (SC).

23.Dalbir singh v. State of Haryana (AIR 2000 SC 1677).

Websites and news papers:

24. http://www.downtoearth.org.in.

25. The Pioneer, New Delhi, 24.03.2008.

26. The Indian Express, New Delhi, 24.04.2008.

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http://www.downtoearth.org.in/


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27. The Times of India, New Delhi, 27.06.2008.

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Judicial approach in dealing with cases of homicide caused by road accidents

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