Karnataka Vs. Muralidhar  INSC 533 (16 March 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 428
OF 2002 State of Karnataka Appellant Muralidhar Respondent
ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment of a learned Single Judge of the
Karnataka High Court allowing the Revision Petition filed by the respondent.
The respondent faced trial for alleged commission of offence punishable under
Sections 279, 338, 304-A of the Indian Penal Code, 1860 (in short the `IPC') by learned IIIrd Additional Sessions
offence punishable under Section 338 IPC the respondent was sentenced to
undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/-
with default stipulation. For the offence punishable under Section 304-A IPC he
was sentenced to rigorous imprisonment for one year and to pay a fine of
Rs.5,000/- with default stipulation. The appeal was dismissed by learned IIIrd
Additional Sessions Judge, D.K. Mangalore.
Background facts in a nutshell are as follows:
respondent had been driving the bus on Ullal-Hejamadi route on 3.12.1995 at
about 10.30 a.m. A tempo was coming from the opposite direction. Both the
vehicles rubbed through resulting in the right hand side portion of the bus
hitting the right hand side portion of the tempo, as a result of which a boy
sitting at that hind portion of the tempo died and one passenger sustained
grievous injuries. It was in respect of this accident that the respondent came
to be prosecuted and convicted.
primary stand before the High Court was that the offences were such that the
accused should not be required to undergo imprisonment.
taking note of Section 71 IPC, High Court held that for the offence under
Section 338 IPC the accused was to pay a fine of Rs.1,000/- with default
stipulation and for the offence under Section 304-A the accused was to pay a fine
of Rs.5,000/- with default stipulation and out of the total 2 amount of
Rs.6,000/- a sum of Rs.5,000/- was to be paid to the father of the deceased
Learned counsel for the appellant-State submitted that the High Court has not
indicated any reason as to why this was not a fit case where custodial sentence
was not to be imposed. The High Court found that the accused was rightly
convicted for the offence punishable under Sections 279, 338 and 304-A IPC.
After having so observed without any basis or reason the custodial sentence was
waived and fines were imposed. It was also noted that no separate sentence was
necessary in respect of offence under Section 279 IPC. It is submitted that the
sentences should be commensurate with the gravity of the offence.
Learned counsel for the respondent on the other hand submitted that the
occurrence took place long back and, therefore, taking the overall view waived
the custodial sentence and imposed fines.
5. In the
instant case, 16 years old boy lost his life because of the rash and negligent
acts of the respondent.
Section 304A speaks of causing death by negligence. This section applies to
rash and negligence acts and does not apply to cases where death has been
voluntarily caused. This section obviously does not apply to cases where there
is an intention to cause death or knowledge that the act will in all
probability cause death. It only applies to cases in which without any such
intention or knowledge death is caused by what is described as a rash and
negligent act. A negligent act is an act done without doing something which a
reasonable man guided upon those considerations which ordinarily regulate the
conduct of human affairs would do or act which a prudent or reasonable man
would not do in the circumstances attending it. A rash act is a negligent act
done precipitately. Negligence is the genus, of which rashness is the species.
It has sometimes been observed that in rashness the action is done
precipitately that the mischievous or illegal consequences may fall, but with a
hope that they will not. Lord Atkin in Andrews v.
of Public Prosecutions (1937) AC 576 at p.583 = 2 All E.R. 552) observed as
lack of care such as will constitute civil liability is not enough. For purposes
of the criminal law there are degrees of negligence; and a very high degree of
negligence is required to be proved before the felony is established. Probably
of all the epithets that can be applied `recklessness' most nearly covers the
case. It is difficult to visualize a case of death caused by reckless driving
in the connotation of that term in ordinary speech which would not justify a
conviction for manslaughter;
4 but it
is probably not all embracing, for `recklessness' suggests an indifference to
risk whereas the accused may have appreciated the risk and intended to avoid
it, and yet shown in the means adopted to avoid the risk such a high degree of
negligence as would justify a conviction."
Section 304-A applies to cases where there is no intention to cause death and
no knowledge that the act done in all probability will cause death.
provision is directed at offences outside the range of Sections 299 and 300
IPC. The provision applies only to such acts which are rash and negligent and
are directly cause of death of another person. Negligence and rashness are
essential elements under Section 304-A. Culpable negligence lies in the failure
to exercise reasonable and proper care and the extent of its reasonableness
will always depend upon the circumstances of each case.
means doing an act with the consciousness of a risk that evil consequences will
follow but with the hope that it will not. Negligence is a breach of duty
imposed by law. In criminal cases, the amount and degree of negligence are
determining factors. A question whether the accused's conduct amounted to
culpable rashness or negligence depends directly on the question as to what is
the amount of care and circumspection which a prudent and reasonable man would
consider to be sufficient considering all the circumstances of the case.
Criminal rashness means hazarding a 5 dangerous or wanton act with the
knowledge that it is dangerous or wanton and the further knowledge that it may
cause injury but done without any intention to cause injury or knowledge that
it would probably be caused.
noted above, "Rashness" consists in hazarding a dangerous or wanton
act with the knowledge that it is so, and that it may cause injury.
criminality lies in such a case in running the risk of doing such an act with
recklessness or indifference as to the consequences. Criminal negligence on the
other hand, is the gross and culpable neglect or failure to exercise that
reasonable and proper care and precaution to guard against injury either to the
public generally or to an individual in particular, which, having regard to all
the circumstances out of which the charge has arisen it was the imperative duty
of the accused person to have adopted.
distinction has been very aptly pointed out by Holloway J. in these words:
rashness is acting with the consciousness that the mischievous and illegal
consequences may follow, but with the hope that they will not, and often with
the belief that the actor has taken sufficient precautions to prevent their
happening. The imputability arises from acting despite the 6 consciousness.
Culpable negligence is acting without the consciousness that the illegal and
mischievous effect will follow, but in circumstances which show that the actor
has not exercised the caution incumbent upon him and that if he had, he would
have had the consciousness. The imputability arises from the negligence of the
civic duty of circumspection." (See In re: Nidamorti Nagabhusanam 7 Mad.
H.C.R. 119) 10. Vehicular accidents resulting in deaths and injuries are
Editorial under the heading "Road Traffic Injuries & fatalities in
India - a modern epidemic" in Indian J. Med. Res. 123, January 2006
contains some interesting observations. The relevant portions read as follows:
United Nations General Assembly adopted a resolution on road safety on October
26, 2005 which invites Member States to implement the recommendations of the
World Report on Road Traffic Injury Prevention; to participate in the first
United Nations Global Road Safety Week; and to recognize the third Sunday in
November of every year as the World Day of Remembrance for Road Traffic
Victims'. This resolution follows the publication of The World Report on Road
Traffic Injury Prevention by the World Health Organization in 2004. This report
highlights the fact that all over the world working age people are more likely
to suffer hospitalization, permanent disability and death due to road traffic
injuries than most other diseases. The situation in India is not very
82,000 persons were killed on Indian roads in 2002. Official statistics
regarding serious injuries are not reliable as they underestimate the actual
number, but it is estimated that the number of people hospitalized may be 15-20
times the number killed. In a do-nothing scenario, it is possible that India
will have 1,20,000 - 1,30,000 road traffic fatalities in the year 2008 and
possibly 1,50,000 - 1,75,000 in 2015. Our vision should aim at reducing the
fatalities to less than 1,00,000 in the short term (2008) and less than 70,000
in the long term (2015).
xxx Safety measures for the near future xxx xxx xxx Motor vehicle occupants:
(i) Enforcement of seatbelt use laws countrywide; (ii) restricting travel in
front seat of cars by children has the potential of reducing injuries
dramatically; and (iii) bus and truck occupant injuries, fatalities, and
injuries caused to other road users can be reduced significantly by enforcing
strict observance of speed limit regulations on highways. Ensuring that bus
timetables and truck movement schedules make it possible for drivers to observe
speed limits with ease. Random speed checking on highways would help ensure
such measures. xxx xxx xxx 8 Road safety strategies - Long term Traffic calming
and speed control: (i) Aim at implementing speed control and traffic calming
measures in all urban areas and at appropriate locations on rural highways by
altering road design, vehicle monitoring through intelligent transport systems,
and vehicle design by the year 2015. This measure is likely to give us the
maximum savings in terms of lives and serious injuries; and (ii) segregated
lanes for vulnerable road users and buses in urban areas. Non-motorized
transport and buses must be provided segregated lanes on all major arterial
roads in urban areas. India specific designs need to be developed and phase
wise implementation plans drawn up for all cities.
xxx Vehicle safely: (i) All vehicles sold in India should meet international
crashworthiness standards by 2010; (ii) all buses and trucks should meet
pedestrian impact standards by 2010; (iii) all urban buses to have low floors
and automatic closing doors; (iv) crashworthiness standards must be developed
for all indigenous vehicles by 2010 and implemented by 2012;
installation of Intelligent Transport Systems (ITS) and other modern safety
devices for assisting and controlling drivers; and (vi) driving under the
influence of alcohol and other drugs. A long term strategy to reduce drinking
and driving incidence to less than 10 per cent of all crashes needs to be drawn
up for the next 10 yr. Sensitization of the public to the extent of the
problem. Institution of random roadblocks and checking on urban roads and rural
highways. Ignition interlock on cars."
"Global Road Safety" certain revealing data have also been provided.
They read as follows:- "THE COMING PLAGUE OF ROAD TRAFFIC INJURIES: A
PREVENTABLE BURDEN FOR RICH AND POOR COUNTRIES".
Almost 1.2 million people are killed each year and 20-50 million are injured or
disabled, most people are unaware that road traffic injuries are a leading
cause of death and disability.
developing countries, death rates from vehicle crashes are rising, and
disproportionately high in relation to the number of crashes. According to a
report published in 2000 7 Developing and transitional countries cumulatively
represent over 85 percent of all road traffic deaths 7 Kenya has nearly 2,000
fatalities per 10,000 crashes. Vietnam has over 3,000 fatalities per 10,000
7 44% of
all road traffic deaths occur in the Asia/Pacific area, which only has 16 % of
the total number of motor vehicles.
10 7 At
71,495 and 59,927 total deaths, China and India, respectively, had the highest
number of road fatalities in the world in 1995.- 7 Pedestrian deaths represent
62 % of all traffic fatalities in Lebanon.
developing countries vulnerable road users, including pedestrians, bicycle and
motor cycle riders, account for the majority of all fatalities.
European countries represent 6% of motor vehicles, but 11% of crash fatalities
Latin America/Caribbean region has the second highest crash costs behind Asia.
vehicle use in developing countries are increasing, road traffic injuries are
expected to become the third leading cause of death and disability worldwide by
2020. In developing countries, each vehicle is much more lethal than the
vehicles in developed countries, because it most frequently takes the lives not
of vehicle occupants, but of vulnerable road users: pedestrians, cyclists. Many
developing countries are increasing the rate of motorized vehicle use at up to
18% per year. In India, for example, there has been a 23% increase in the
number of vehicles from 1990-1999 and a 60-fold increase is predicted by 2050.
human toll in such accidents is tragic. Survivors and family members are
affected not only by an immediate death or disability, but also lifetime
psychological and physical suffering. Crashes often result in orphans, and some
victims, as young as infants, spend the rest of their lives with medical
addition to the devastating human toll, the economic impact of road crashes is
also enormous. Many of those injured or killed are wage earners, leaving
families destitute and without means of support. Loss of wages, property
damage, and other factors affected by road traffic crashes represented 4.6% of
the gross national product of the United States in 1994.
developing countries, road traffic crashes represent 3-5% of the GNP.
estimated annual cost of road traffic crashes in developing countries exceeds
$100 billion (US). This amounts to nearly double the total combined development
assistance these countries receive every year from bilateral and multi-lateral
government organizations. Globally, the estimated annual costs of road crashes
are 500 billion (US).
PROBLEM IS PREVENTABLE
have the tools needed to combat this epidemic. In the developed nations, proven
methods such as enforcement of laws regarding driving under the influence of
alcohol or drugs, reducing speed limits, and requiring seat belts and
restraints have shown significant reduction in traffic fatalities.
design and road environment, vehicle design, and road safety standards are also
strategies that successfully address traffic safety. For maximum impact of
RTI's, a systems approach with multiple, scientifically proven prevention
techniques must be employed. Education alone has been shown to be less
effective, and often ineffective.
Proven interventions for developed countries require research, modification,
and testing for developing countries. For example, developing countries face
poorly designed and maintained roadways, unsafe vehicles, drivers under the
influence of drugs or alcohol, lack of national policies, and inadequate
enforcement. Success will require significant new resources supported by
sustained political commitment.
aspects were highlighted in Prabhakaran v. State of Kerala (2007 (8) SCALE
sympathy to impose inadequate sentence would do more harm to the justice system
to undermine the public confidence in the efficacy of law and society could not
long endure under such serious threats. It is, therefore, the duty of every
court to award proper sentence having regard to the nature of the offence and
the manner in which it was executed or committed etc. This position was
illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil
Naidu (AIR 1991 SC 1463).
giving due consideration to the facts and circumstances of each case, for
deciding just and appropriate sentence to be awarded for an offence, the
aggravating and mitigating factors and circumstances in which a crime has been
committed are to be delicately balanced on the basis of really relevant
circumstances in a dispassionate manner by the Court. Such act of balancing is
indeed a difficult task. It has been very aptly indicated in Dennis Councle
MCGDautha v. State of Callifornia: 402 US 183: 28 L.D.
that no formula of a foolproof nature is possible that would provide a
reasonable criterion in determining a just and appropriate punishment in 14 the
infinite variety of circumstances that may affect the gravity of the crime.
absence of any foolproof formula which may provide any basis for reasonable
criteria to correctly assess various circumstances germane to the consideration
of gravity of crime, the discretionary judgment in the facts of each case, is
the only way in which such judgment may be equitably distinguished.
object should be to protect the society and to deter the criminal in achieving
the avowed object of law by imposing appropriate sentence. It is expected that
the Courts would operate the sentencing system so as to impose such sentence
which reflects the conscience of the society and the sentencing process has to
be stern where it should be.
Imposition of sentence without considering its effect on the social order in
many cases may be in reality a futile exercise. The social impact of the crime,
e.g. where it relates to offences against women, dacoity, kidnapping,
misappropriation of public money, treason and other offences involving moral
turpitude or moral delinquency which have great impact on social order, and public
interest, cannot be lost sight of and per se require exemplary treatment. Any
liberal attitude by imposing meager sentences or taking too sympathetic view
merely on account of lapse of time in respect of 15 such offences will be
result-wise counter productive in the long run and against societal interest
which needs to be cared for and strengthened by string of deterrence inbuilt in
the sentencing system.
Court will be failing in its duty if appropriate punishment is not awarded for
a crime which has been committed not only against the individual victim but
also against the society to which the criminal and victim belong. The
punishment to be awarded for a crime must not be irrelevant but it should
conform to and be consistent with the atrocity and brutality with which the
crime has been perpetrated, the enormity of the crime warranting public
abhorrence and it should "respond to the society's cry for justice against
is a case where the High Court has without considering the relevant aspects and
even without indicating any reason, waived the custodial sentence and imposed
only fine. The judgment therefore is clearly unsustainable. The impugned
judgment of the High Court is set aside and that of the trial Court is restored.
appeal is allowed.
........................................J. 16 (Dr. ARIJIT PASAYAT)