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
1
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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
2
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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”.
3
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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
4
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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).
5
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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).
6
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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.”
7
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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.
9
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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.
10
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
(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
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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.
13
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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.
14
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
(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
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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.
17
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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
20
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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].
22
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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].
23
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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].
24
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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).
25
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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
Judicial approach in dealing with cases ofHomicide caused by road accidents.
2014
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.
27
Top Related