STATE TR. P.S. LODHI COLONY, NEW DELHI v. SANJEEV NANDA

Citation: [2012] 12 S.C.R. 881

Court: Supreme Court of India

Bench: DEEPAK VERMA, K.S. RADHAKRISHNAN

Case summary

STATE TR. P.S. LODHI COLONY, NEW DELHI v. SANJEEV NANDA.pdf

Judgment text

(2012] 12 S. C. R. 881 STATE TR. P. S. LODHI COLONY, NEW DELHI v. SANJEEV NANDA (Criminal Appeal No. 1168 of 2012) AUGUST 3, 2012 [DEEPAK VERMA AND K. S. RADHAKRISHNAN, JJ. ] Penal Code, 1860 - s. 304 (Part II) - Motor accident - Causing death of 6 and injury to one - As per medical evidence accused-driver under influence of liquor at the time of accident - Injured witness and eye-witness turning hostile - Trial court relying on one other witness convicting the accused u/s. 304 (Part II) /PC and sentenced him to five years imprisonment - High Court altered the conviction to that u/s. 304A and reduced the sentence to two years imprisonment - In appeal, held: Accused is liable to be convicted u/s. 304 (Part II) as he had sufficient knowledge that his act was likely to cause death - Sentence awarded by High Court is maintained - In addition accused is directed to pay Rs.

50 lakhs to the Union Government to be utilized for providing compensation to the motor accident victims in hit and run cases and in default to undergo one year SI; and further directed to do community service for two years to be arranged by Ministry of Social Justice and Empowerment and in default to undergo imprisonment for two years. Witness - Hostile witness - Evidentiary value - Held: If a witness turns hostile to subvert the judicial process, the courts should not stand as mute spectators and every effort should be made to bring home the truth - Criminal judicial system cannot be overturned by the gullible witnesses who act under pressure, inducement and intimidation. Motor Accident - Hit and run case - Duty of the driver of offending vehicle, duty of bystander - Discussed - Motor Vehicles Act, 1988 - ss. 134 and 187. The respondent-accused was prosecuted u/ss. 201, 304(1), 308 r/w s. 34 IPC. The prosecution case was that at about 4. 00 a. m.

on the day of occurrence, the 8 respondent-accused was driving his car rashly and negligently at a high speed, hitting seven persons and thereafter he ran away. In the accident, 6 of the victims were killed while the 7th victim (PW-2) survived. PW-1 was the eye-witness to the incident. In medical examination of the accused, it was found that he had consumed alcohol the previous night. During trial, eye· witness as well as the injured witness turned hostile. Trial court relying on one other witness convicted the accused uls. 304 (Part II) IPC and imposed upon him a jail sentence of five years. In appeal, High Court found the accused guilty of the offence u/s. 304A IPC and reduced the sentence to two years. Hence the present appeal. Partly allowing the appeal, HELD: Per Court: 1. The judgment and order of conviction passed by the High Court u/s. 304A IPC is set aside and the order of conviction of trial court u/s. 304 (Part II) l. P. C. is restored and upheld.

However, it is appropriate to maintain the sentence awarded by the High Court, which the accused has already undergone. [Para 3] [946-C] 2. In addition, the accused is put to the following terms: (1) Accused has to pay an amount of Rs. 50 lakhs (Rupees Fifty lakhs) to the Union of India within six months, which will be utilized for providing compensation to the victim of motor accidents, where the vehicle owner, SANJEEV NANDA driver etc. could not be traced, like victims of hit and run cases. On default, he will have to undergo simple imprisonment for one year. This amount would be kept in a different head to be used for the aforesaid purpose only. (2). The accused would do community service for two years which will be arranged by the Ministry of Social Justice and Empowerment within two months. On default, he will have to undergo simple imprisonment for two years. [Para 4] [946-D-G] PER DEEPAK VERMA, J: HELD: 1.

1 Accident means an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated. Thus, if the injury/death is caused by an accident, that itself cannot be attributed to an intention. If inteRtion is proved and death is caused, then it would amount to culpable homicide. [Para 33) [940- G-H; 941-A] Black's Law Dictionary - referred to. 1. 2. In the case at hand, looking to the nature and manner in which accident had taken place, it can safely be held that respondent-accused had no intention to cause death but certainly had the knowledge that his act may result in death. There is nothing to prove that he knew that a group of persons was standing on the road he was going to pass through. If that be so, there cannot be an intention to cause death or such bodily injury as is likely to cause death. Thus, respondent had committed an offence u/s. 304 (Part II) IPC.

[Paras 39 and 40] [944-E-H) Ku/want Rai vs. State of Punjab (1981) 4 SCC 245; Dalbir Singh vs. State of Haryana (2000) 5 SCC 82: 2000 (3) SCR 1000; State of Maharashtra vs. Salman Salim Khan (2004) 1 SCC 525; Alister Anthony Pareira vs. State of Maharashtra (2012) 2 SCC 648; State of Gujarat vs. Haiderali Kalubhai (1976) 1 SCC 889: 1976 (3) SCR 303; Naresh Giri vs. State of M. P 2008 (1) sec 791: 2001 (11) SCR 987 referred to. 1. 3. The accident had occurred solely and wholly on 8 account of rash and negligent driving of BMW car by the respondent, at a high speed, who was also intoxicated at that point of time. This fact has been admitted by the respondent-accused at the appellate stage in the High Court. For the simple reason that he had already driven almost 16 kms from the place where he had started, to the point where he actually met with the accident without encountering any untoward incident would not go absolutely in favour of the respondent.

There is no evidence on record that he had consumed. more liquor on their way also. It is extremely difficult to assess or judge when liquor would show its effect or would be at its peak. It varies from person to person. The prosecution failed to use either the Breath Analyser or Alco Meter to record a definite finding in this regard. Evidence of the doctors P. W. 10 and P. W. 16 shows that certain amount of alcoholic contents was still found on examination of his blood next day. It is a settled principle of law that if something is required to be done in a particular manner, then that has to be done only in that way or not at all. [Paras 26, 27, 28 and 29] [938-G-H; 939-A-G] Nazir Ahmad v. King Emperor AIR 1936 PC 253 (2) referred to. 1. 4. Soon after hitting one of the victims, accused did not apply the brakes so as to save at least some of the lives.

Since all the seven of them were standing in a group, he had not realized that impact would be so severe that they would be dragged for several feet. Possibility also cannot be ruled out that soon after hitting SANJEEV NANDA them, respondent, a young boy of 21 years then, might have gone into trauma and could not decide as to what to do until vehicle came to a halt. He must have then realized the blunder he committed. [Para 31] [940-C-D] 2. Even though in the facts and circumstances of the case, jail sentence awarded to him may not be just and appropriate the mitigating circumstances tilt heavily in favour of the accused. Therefore, it is appropriate, to maintain the sentence awarded by the High Court, which he has already undergone. No useful purpose would be served by sending the accused to jail once again.

However, this has been held so, looking to very peculiar facts and features of this particular case and it may not be treated as a precedent of general proposition of law on the point, for other cases. [Paras 44 and 45] [945-D-G] PER K. S. RADHAKRISHNAN, J. (Partly dissenting and Supplementing! : HELD: 1. 1. Section 304A IPC carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide not amounting to murder u/s. 299 IPC or murder u/s. 300 IPC. Section 304A excludes all the ingredients of Section 299 or Section 300. [Para 44] [919-A] State of Gujarat v. Haidara/i Ka/ubhai (1976) 1 SCC 889: 1976 (3) SCR 303; Naresh Giri v. State of M. P. (2008) 1 SCC 791: 2007 (11) SCR 987; Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648; Jagriti Devi v. State of Himacha/ Pradesh (2009) 14 SCC 771: 2009 (10) SCR 167 - relied on. Andhra Pradesh v. Rayavarapu Punnayya and Anr.

(1976) 4 SCC 382: 1977 (1) SCR 601 - referred to. 1. 2. In the instant case, it has been brought out in evidence that the accused-respondent was in an inebriated state, after consuming excessive alcohol, he was driving the vehicle without licence, in a rash and negligent manner in a high speed which resulted in the death of six persons. The accused had sufficient knowledge that his action was likely to cause death and such an action would, in the facts and circumstances of this case fall under Section 304(11) of the IPC and the trial court has rightly held so and the High Court has committed an error in converting the offence to Section 304A of the IPC. [Para 52] [925-A-B] 2. 1. The key prosecution witnesses PW1, PW2 and PW3 turned hostile. Even though the above mentioned witnesses turned hostile and PW3 was later examined as court witness, when their evidence is read with the evidence of others as disclosed and expert evidence, the guilt of the accused had been clearly established.

[Para 39) [916-B-C] 2. 2. Witness turning hostile is a major disturbing factor faced by the criminal courts in India. Reasons are many for the witnesses turning hostile, but especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law thereby, eroding people's faith in the system. The evidence of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.

If a court finds that in the process, the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as whole with due caution, accept, in the light of the SANJEEV NANDA evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court and they found the accused guilty. [Para 40] [916-E-H; 917-A-B] 8 State of U. P. v. Ramesh Mishra and Anr. AIR 1996 SC 2766: 1996 (4) Suppl. SCR 631; K. Anbazhagan v. Superintendent of Police and Anr. AIR 2004 SC 524: 2003 (5) Suppl. SCR 610 - relied on. 2. 3. In the instant case even the injured witness, who was present on the spot, turned hostile. If a witness becomes hostile to subvert the judicial process, the courts shall not stand as a mute spectator and every effort should be made to bring home the truth.

Criminal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 IPC imposes punishment for giving false evidence but is seldom invoked. [Para 41] [917-8-E] Sidharlha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1: 2010 (4) SCR 103; Zahira Habibullah Shaikh v. State of Gujarat AIR 2006 SC 1367: 2006 (2) SCR 1081 - relied on. 3. 1. The plea that if a particular procedure has been prescribed u/ss. 185 and 203 of Motor Vehicles Act, 1988, then that procedure has to be followed, has no application to the facts of this case. Cumulative effect of the provisions of ss. 185, 203 and 205 of the Act would indicate that the. Breath Analyzer Test has a different purpose and object. The language of the above Sections would indicate that the said test is required to be carried out only when the person is driving or attempting to drive the vehicle.

The expressions "while driving" and "attempting to drive" in the above Sections have a meaning "in praesentr. In such situations, the presence of alcohol in the blood has to be determined instantly so that the offender may be prosecuted for drunken driving. A Breath Analyzer Test is applied in such situations so that the alcohol content in the blood can be detected. The breath analyzer test could not have been applied in the present case since the accused had escaped from the scene of the accident and there was no question . of subjecting him to a breath analyzer test instantaneously. The first accused was taken to the hospital at 12. 29 PM on the next day of the incident, when his blood sample was taken by the Scientific Officer (PW16). While testing the alcohol content in the blood, she noticed the presence of 0. 115% weight/volume ethyl alcohol. The report exhibited as PW16/A was duly proved by the Doctor. Over and above, in her cross-examination, she had explained that 0.

115% would be equivalent to 115 mg per 100 ml of blood and deposed that as per traffic rules, if the person is under the influence of liquor and alcohol content in blood exceeds 30 mg per 100 ml of blood, the person is said to have committed the offence of drunken driving. Evidence of the experts clearly indicates the presence of alcohol in blood of the accused beyond the permissible limit, that was the finding recorded by the courts below. [Paras 26 and 28] [908-A-F; 909-A·B] 3. 2. The plea that the accused was coming from a distance of 16 kms. before the accident, causing no untoward incident and hence it is to be presumed that he was in a normal state of mind is not relevant for the present case. First of all, that statement is not supported by evidence apart from the assertion of the accused. Assuming so, it is a weak defence, once it is proved that the person had consumed liquor beyond the prescribed limit on scientific evidence. [Para 29] [909-C-D] Kurban Hussain v.

State AIR 1965 SC 1616: 1965 SCR 622 - relied on. SANJEEV NANDA 3. 3. The plea that the accused was not under the influence of liquor or beyond the limit prescribed under the Motor Vehicle Act and he was in his senses and the victims were at fault being on the middle of the road, is without any substance and only to be rejected. [Para 31] [910-B·C] 3. 4. The plea of fog, even if its presence had been established, would only weaken the defence case and the trial court and the High Court had rightly rejected that plea. Even going by the evidence of PW15 (Director of Metrological Department) and also the report exhibited as PW 15/B, there is nothing to show the presence of fog on the spot of the accident. Report of PW-15 stated that ·the sky was mainly clear and there was no mention of the presence of mist or fog at the spot in the report.

The visibility of 100 m of clear sky was reported by PW 15 in 0 exhibit 15/B which would demolish the theory of fog at the spot of the accident and poor visibility. Assuming that · there was presence of fog, it was the duty of the accused either to stop the vehicle if the visibility was poor or he should have been more cautious and driven the vehicle carefully in a lesser speed so that it would not have blurred his vision. This never happened since the accused was in an inebriated state and the fact that six persons died practically on the spot would indicate that the vehicle was driven in a rash and negligent manner at an excessive speed. [Para 33] [910-G-H; 911-A·C] 3. 5. Admittedly, the first accused was not having an Indian driving licence at the time of accident, though he had produced a licence issued by the Licencing Authority from a State in the United States.

An inference is drawn that the accused was not conversant in driving a vehicle on the Indian roads in the absence of an Indian licence at the time of the accident. In any view, since the accused was in an inebriated state, therefore, the question whether he knew driving is not of much consequence. [Para 35] [911-G-H; 912-A-C-E] 890 SL! f'REME COURT REPORTS [2012] 12 S. C. R. Su/eman Rahiman Mu/ani and Anr. v. State of Maharashtra AIR 1968 SC 829: 1968 SCR 515 distinguished. 4. 1. Generally, the policy which the court adopts while awarding sentence is that the punishment must be appropriate and proportional to the gravity of the offence committed. Law demands that the offender should be adequately punished for the crime, so that it can deter the offender and other persons from committing similar offences.

Nature and circumstances of the offence; the need for the sentence imposed to reflect the seriousness of the offence; to afford adequate deterrence to the conduct and to protect the public from such crimes are certain factors to be considered while imposing the sentence. [Para 57] [927-E-G] 4. 2. The imposition of sentence without considering its effect on the social order in many cases is in reality a futile exercise. Had the accused extended a helping hand to the victims of the accident, caused by him by making arrangements to give immediate medical attention, perhaps lives of some of the victims could have been saved. Even after committing the accident, he only thought of his safety, did not care for the victims and escaped from the site showing least concern to the human beings lying on the road with serious injuries. Conduct of the accused is highly reprehensible and cannot be countenanced, by any court of law. [Para 58] [927-G-H; 928-A-B] ' 4. 3.

Convicts in various countries, now, voluntarily come forward to serve the community, especially In crimes relating to motor vehicles. Graver the crime greater the sentence. But, serving the society actually Is not a punishment in the real sense where the convicts pay back to the community which he owes. Conduct of the convicts will not only be appreciated by the SANJEEV NANDA community, it will also give a lot of solace to him, especially in a case where because of one's action and inaction, human lives have been lost. In the facts and circumstances of the case, where six human lives were lost, adoption of this method would be good for the society rather than incarcerating the convict further in jail. Further sentence of fine also would compensate at least some of the victims of such road accidents who have died, especially in hit and run cases where the owner or driver cannot be traced. Therefore, it is ordered that the accused has to pay an amount of Rs.

50 lakh (Rupees Fifty lakh) to the Union of India within six months, which will be utilized for providing compensation to the victim of motor accidents, where the vehicle owner, driver etc. could not be traced, like victims of hit and run cases. On default, he will have to undergo simple imprisonment for one year. This amount be kept in a different head to be used for the aforesaid purpose only. It is also ordered that the accused would do community service for two years which will be arranged by the Ministry of Social Justice and Empowerment within two months. On default, he will have to undergo simple imprisonment for two years. [Paras 60 and 61] [928-D-H; 929-A-C] 5. 1. Section 134 of Motor Vehicles Act, 1988 casts a duty on a driver to take reasonable steps to secure medical attention for the-injured person. Section 187 of the Act provides for punishment relating to accident. The accused had never extended any helping hand to the victims lying on the road and fled from the scene.

No proceedings were instituted against the accused in the case on hand invoking the above mentioned provisions. [Para 36] [912-F-G; 914-A-D] Pt. Parmanand Katara v. Union of India (UO/) and Ors. (1989) 4 sec 286: 1989 (3) SCR 997 - relied on. 5. 2. No legal obligation as such is cast on a bystander either under the Motor Vehicle Act or any other legislation in India. But greater responsibility is cast on them, because they are people at the scene of the occurrence, and immediate and prompt medical attention and care may help the victims and their dear ones from unexpected catastrophe. Private hospitals and government hospitals, especially situated near the Highway, where traffic is high, should be equipped with all facilities to meet such emergency situations. Ambulance with all medical facilities including doctors and supporting staff should be ready, so that, in case of emergency, prompt and immediate medical attention could be given. [Para 37] (915-A-C] 5. 3.

This Court in *Paschim Banga Khet Mazdoor Samiti gave various directions to the Union of India and other States to ensure immediate medical attention in such si. tuations and to provide immediate treatment to. save human lives. Law Commission in its 201st report dated 31. 8. 2006 had also made various recommendations,. but effective and proper steps are yet to be taken by Union of India and also many State Governments. Immediate attention of the Union of India and other State Governments, is called upon if they have not already implemented those directions, which they may do at the earliest. [Para 37] (915-C-F] *Paschim Banga Khet Mazdoor Samiti and Ors. v. State of West Bengal and Ors. (1996) 4 SCC 37: 1996 (2) Suppl. SCR 331 - relied on. 5. 4. Proper attention by the passing vehicles will also be of a great help and can save human lives. Many a times, bystanders keep away from the scene, perhaps not to get themselves involved in any legal or court proceedings.

Good Samaritans who come forward to help must be treated with respect and be assured that they will have to face no hassle and will be properly SANJEEV NANDA rewarded. Therefore, the Union of India and State Governments are directed to frame proper rules and regulations and conduct awareness programmes so that the situation like this could, to a large extent, be properly attended to and, in that process, huma_n lives could be saved. [Para 38] [915-G-H; 916-A-B] Case Law Refe. rence: In the judgment of Deepak Verma, J. (1981) 4 sec 245 Referred to Para 25 2000 (3) SCR 1000 Referred to Para 25 (2004) 1 sec 525 Referred to Para 25 (2012) 2 sec 648 Referred to Para 25 AIR 1936 PC 253 (2) Referred to Para 29 1976 (3) SCR 303 Referred to Para 34 2007 (11) SCR 987 Referred to Para 34 In the Judgment of K. S. Radhakrishnan. J. : 1965 SCR 622 Relied on Para 29 1968 SCR 515 Distinguished Para 35 1989 (3) SCR 997 Relied on Para 36 1996 (2) Suppl. SCR 331 Relied on Para 37 1996 (4) Suppl.

SCR 631 Relied on Para 40 2003 (5) Suppl. SCR 610 Relied on Para 40 2010 (4) SCR 103 Relied on Para 41 2006 (2) SCR 1081 Relied on Para 41 1976 (3) SCR 303 Relied on Para 45 2007 (11) SCR 987 Relied on Para 47 (2012) 2 sec 648 Relied on Para 48 2009 (10) SCR 167 Relied on Para 49 1977 (1) SCR 601 Referred to Para 50 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1168 of 2012. From the Judgment & Order dated 20. 7. 2009 of the High Court of Delhi at New Delhi in Criminal Appeal No. 807 of 2008. Sidharth S. Dave, Anil Katiyar for the Appellant. Ram Jethmalani, Lata Krishnamurti, R. N. Karanjawala, Manik Karanjawala, Sandeep Kapur, Ravi Sharma (for Karanjawala & Co. ,) for the Respondent. The Judgments & Order of the Court was delivered by K. S. RADHAKRISHNAN, J, Delay condoned. Leave granted. 1. I had the benefit and privilege of carefully considering the judgment delivered by my esteemed brother.

However, I find it difficult to agree with some of the findings and observations recorded therein, even though I agree with most of the major conclusions, however, with a caveat. I, therefore, deem it fit and proper to supplement it with few suggestions and directions. 2. Facts have been meticulously and concisely dealt with by my learned Brother and I do not want to burden my judgment with those voluminous facts which find a place in the judgment of the trial court as well as the High Court. 3. The controversy in this case had been considerably narrowed down since learned senior counsel appearing for the accused - Sanjeev Nanda admitted that it was he, who was · driving the BMW car bearing registration No. M-312 LYP in the early hours of 10. 01. 1999, which resulted in the death of six persons, leaving another injured.

Admission was made after a prolonged trial, spanning over a period of nine years, that too after the trial court, appreciating the oral and documentary evidence adduced by the prosecution and defence, came to the conclusion that he was guilty and convicted him for the offence under Section 304(11) of the IPC and sentenced him to undergo rigorous imprisonment for five years. 4. The accident had occurred in early hours of 10. 01. 1999 near the Car Care Centre, Lodhi Road. Charges were framed against the first accused and others on 08. 04. 1999. Charges under Sections 338, 304 of the IPC were framed against the first accused - Sanjeev Nanda and another for causing death of six persons and for attempting to commit culpable homicide not amounting to murder of Manoj Malik. Another charge was also framed under Section 201/34 against the first accused and two others for fleeing away from the spot with the intention to screen themselves from legal punishment. 5.

We are in this case primarily concerned with the charge against Sanjeev Nanda - the first accused. Prosecution in order to establish the guilt examined 61 witnesses, of which Sunil Kulkarni was given up by the prosecution and was examined as a court witness. Upon completion of the prosecution evidence, accused persons were questioned and statements of the accused persons were recorded under Section 313 of the Cr. P. C. On the side of the accused, DW1 to DW9 were examined. Documentary evidences such as FSL report exhibited as P16/A etc. were also produced. The trial court vide judgment dated 02. 09. 2008, as already stated, found the first accused guilty under Section 304(11) of the IPC and awarded the sentence of five years rigorous imprisonment. 6. Aggrieved by the judgment of the trial court, the first accused filed Criminal Appeal No.

807 of 2008 before the High Court and the High Court after examining the contentions of the parties converted the conviction from Section 304(11) to Section 304A of the IPC and reduced the sentence to two years. The accused had already undergone the punishment awarded by the High Court and no appeal was preferred by him against the judgment of the High Court or the findings recorded by the High Court. The present appeal has been preferred by the State contending that the High Court has committed an error in converting the conviction from Section 304(11) to Section 304A of the IPC considering the seriousness of charges proved and the gravity of the offence. 7. Shri Harin P. Raval, Additional Solicitor General appearing for the State, submitted that in the facts and circumstances of the case, the High Court was not justified in converting the conviction from Section 304(11) to 304A of the IPC, raising various grounds.

Learned ASG submitted that the High Court had misdirected itself in concluding that the facts of the case would not attract 304(11) of the IPC. Shri Raval submitted that it was the first accused who had driven the vehicle on a high speed after consuming liquor and that too without a licence, causing death of six persons and injuring one, leaving them unattended. Learned ASG further submitted that the gravity of the offence was of such a nature that ii is touching the boundaries of Section 300(4) of the IPC. Further, it was also pointed out by Shri Raval that the knowledge of the second degree comprehended from Part-Ill of Section 299 of the IPC, where death is caused by the offender by an act which offender knows is likely to cause death, would be attracted. Reference was made to the judgments of this Court in State of Gujarat v. Haidarali Ka/ubhai (1976) 1 SCC 889, Ku/want Rai v. State of Punjab (1981) 4 SCC 245, State of Maharashtra v.

Salman Salim Khan &Another (2004) 1 SCC 525 and Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648. Learned counsel referred to the oral and documentary evidence, the scene of crime as narrated by Kailash Chand, S. I. in Rukka, as well as site plan and submitted that the scene of occurrence, which was horrifying, clearly indicates beyond doubt, that the accused had knowledge that the persons who were hit by the car might die but left the scene of occurrence without caring for human lives. 8. Shri Raval also extensively referred to the oral and documentary evidence adduced in this case and submitted that the trial court as well as the High Court had concurred in finding that it was the accused who had committed the offence over and above admission of the first accused.

Prosecution case, it was pointed out, mainly rested on the oral evidence of PW1 - Hari Shankar, an employee of petrol pump, PW2- Manoj Malik, injured and an employee of a hotel and PW3 - Sunil Kulkarni, the court witness though, given up by the prosecution. ' Further, Shri Raval submitted that the evidence of all these witnesses, though turned hostile, have to be appreciated in the light of the peculiar facts and circumstances of this case and also taking note of the admission of the first accused that it was he who had driven the vehicle on the fateful day. Learned Counsel also submitted that the court should appreciate the circumstance under which most of the prosecution witnesses turned hostile and the incidents which led to the judgment of this Court in R. K. Anand it. Registrar, Delhi High Court [(2009) 8 sec 106] cannot be lost. sight of, which revealed the unholy alliance, then defence counsel.

had with the special public prosecutor for subverting the criminal trial of this case. PW2, who got injured in the accident, turned ho!! tile so as to subvert trial. Evidently, all these were done at the behest of the accused though the prosecution was successful in bringing home the guilt of the accused, as found by the courts below. 9. Shri Raval submitted that since learned counsel for the accused had admitted that it was the first accused who was driving the vehicle on the fateful day resulting in the death of six persons, the only question that remains to be considered is whether the accused deserves proper punishment for the offence committed under Section 304(11) of the IPC or whether the conviction or sentence awarded by the High Court under Section 304A of the IPC would be inadequate punishment, so far as the facts and circumstances of this case are concerned.

Shri Raval submitted that the accused deserves harsher punishment, as rightly held by the trial court considering the fact that he was driving the vehicle in an inebriated state, without licence and that he had left the scene of occurrence without extending any helping hand to the victims either by taking them to the hospital or reporting the accident to the police at the earliest point of time. Shri Raval placed considerable reliance on the evidence of PW-16 and the FSL report proved on record as Exhibit 16/A and pointed out that the report indicated the presence of 0. 115% alcohol in the blood sample of the accused. Shri Raval submitted that the High Court had correctly 0 understood the scope and ambit of Section 185 of the Motor Vehicles Act r/w Section 203 of the Act and came to a correct conclusion that the presence of 0.

115% alcohol was much above the limit of 30mg prescribed under the Motor Vehicles Act and it can definitely affect the ability to drive the vehicle in a normal manner. 10. Shri Raval also submitted that the fog and lack of visibility on the site projected by the counsel for the accused was rightly rejected by the High Court. Learned counsel pointed out that this argument was neither raised before the trial court nor in the grounds of appeal taken before the High Court. Further, PW 15 - Dr. S. C. Gupta's report had not stated the presence of fog on the site of the accident. On the other hand, PW15 stated that the sky was clear and the mention of mist in the report was of no consequence. Shri Raval submitted that the car was coming in a high speed and considering the fact that there was clear visibility, the only conclusion possible was that the accused was in a drunken state and nobody knew whether he had driven the car 16 kms prior to the accident.

Shri Raval, therefore submitted that the High Court was not justified in holding that the offence will attract Section 304A of the IPC and not 304 (II) of the IPC. 11. Shri Ram Jethmalani, learned senior counsel appearing for the respondent - accused, submitted that the accused had already undergone the sentence awarded by the 8 High Court and since no sufficient grounds have been made by the prosecution to upset the conclusion reached by the High Court that in the facts and circumstances of the case, the offence will fall only under Section 304A of the IPC. Learned senior counsel submitted that the accused had admitted the factum of the accident that, he was driving the vehicle on the morning hours of 10. 01. 1999 so as to give a quietus to the entire controversy and to purchase peace for the accused, who had undergone agony of the criminal trial for over a decade. 12.

Learned senior counsel submitted, the factum of admission made by the accused in this regard cannot be put against him or prejudice the court in appreciating various contentions raised in defending his case. Shri Jethmalani, learned senior counsel, submitted, though the accident had occurred in the morning hours of 10. 01. 1999, . the trial was prolonged due to various reasons - mainly due to the lethargic attitude of the prosecution and also due to the delay in the court proceedings which cannot be put against the accused. Further, he had already undergone the sentence of two years awarded by the High Court and subsequently he got married and has also been blessed with a daughter and it will be too harsh to punish him with imprisonment for a further term. 13. Learned senior counsel also pointed out his behavior and conduct in jail was also well-acknowledged and he has also not been involved in any criminal offence subsequently.

Further, the families of the victims were adequately compensated in monetary terms and he was only 21 years on the date of the incident. These factors according to the learned senior counsel should weigh with the court and the appeal be not entertained. Learned senior counsel also attacked the various findings . recorded by the High Court and pointed out that since the accused had already undergone the punishment, no appeal was preferred in challenging those findings and in case where the State is seeking enhancement of the punishment, the accused can always raise his defence against various grounds raised by the prosecution in the appeal, since the appeal is only the 8 continuation of the trial. 14. Learned senior counsel pointed various instances of judicial unfairness meted out to the respondent. Reference was made to the evidence of Sunil Kulkarni - the court witness.

Learned senior counsel pointed out free and fair trial is sine qua non of Article 21 of the Constitution of India, which was denied to the accused in the instant case. In support of his contention regarding unfair trial, reference was made to the judgment in Jamaica (Constitutional) Order as referred in Herbert Bell v. Director of Public Prosecutions & Anr. [(1985) A. C. 937], Datar Singh v. State of Punjab [(1975) 4 SCC 272], Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] and Chandran@ Surendran and Anr. v. State of Kera/a [1991 Supp(1) SCC 39]. Learned senior counsel also pointed out that the judgment in R. K. Anand (supra) had also influenced the judicial mind, especially that of the trial judge and that the High Court has rightly converted the conviction from Section 304(11) of the IPC to Section 304A of the IPC and that the accused had undergone the punishment. 15.

Learned senior counsel also submitted that the prosecution had committed a grave error in suppressing the PCR messages which were of great significance for the accused to prove his defence. PW2, one of the victims of the accident who was in the Jeep, also disclosed various facts which were suppressed by the prosecution. Learned senior counsel also pointed out Kulkarni was a totally unreliable witness and the statements made by him were given importance by the trial court as well as the High Court in reaching various conclusions against the accused. 16. Shri Jethmalani submitted there is no evidence on record to prove that the accused was intoxicated in the sense in which intoxication was understood under Section 85 of the IPC nor in the sense of his ability to control the motor vehicle being substantially impaired as a result of consuming alcohol as laid down by Section 185(1) of the fl! l. V. Act.

Further, it was also pointed that the test statutorily recognized for drunken driving is the breath analyzer test for drunken driving and the accused was not subjected to that test. Learned counsel has submitted that when a statute prescribes a particular method the prosecution has to follow that method and not any other method. Reliance was placed on the judgments of the House of Lords in Rowlands v. Hamilton [(1971) 1 All E. R. 1089], Gumb/ey v. Cunningham [(1989) 1 All E. R. 5], and judgments of the Privy Council in Nazir Ahmad v. Emperor [AIR 1936 PC 253], State of Uttar Pradesh v. Singhara Singh and Ors. [AIR 1964 SC 358]. 17. Learned senior counsel also submitted that no reliance could be placed on the evidence tendered by PW-16 - Dr. Madhulika Sharma, Senior Scientific Officer as well as the evidence of PW10 - Dr. T. Milo and submitted that there is nothing to show the vehicle was driven in a reckless or negligent manner so as to infer that the accused was drunk.

On the other hand, learned senior counsel pointed out that the accused could not have avoided the accident since policemen and others were standing on the middle of the road on a foggy day when the visibility was poor. Further, it was pointed out that the accused had driven car about 16 kms before the accident without any untoward incident, which would indicate that, his condition was stable and he had not consumed liquor beyond the prescribed lim~. 18. Learned senior counsel also submitted that the evidence of PW 15 - Dr. S. C. Gupta was also not properly appreciated by the courts below, so also the evidence tendered on the presence of fog. The presence of fog, according to the learned senior counsel, clearly restricted the visibility and the entire fault cannot be put on the accused. Reference was also made to the evidence of PW2 on the presence of fog on the morning of 10. 01. 1999.

On the plea of excessive speed, learned senior counsel submitted, assuming it was so, that itself would not establish that the accused was negligent or rash, at the most, there was gross negligence. Reference was made to the judgment of this Court in State of Karnataka v. Satish [(1998) a sec 493J. 19. Learned senior counsel submitted, in the facts and circumstances of the case, no knowledge could be attributed to the accused since there was nothing to show that the accused had the intention to commit the offence, nor any knowledge can be attributed to him and even if it is assumed that he was negligent or rash, only section 304A of the IPC would apply and not 304(11) of the IPC. The judgment of this Court in Alister Anthony Pareira (supra), according to learned senior counsel, requires reconsideration. Learned senior counsel also submitted that the judgment of this Court in Haidara/i Kalubhai (supra) would not apply to the facts of this case. 20.

We may at the outset point out that both the trial court and High Court, on appreciation of oral and documentary evidence, came to the clear finding that it was the accused who had driven the BMW car at the early hours of 10. 01. 1999 - the day on which six human lives were lost due to the rash and negligent act of the first accused, leaving another person injured. The facts and circumstances of the case according to the trial court, as already indicated, would attract conviction under Section 304(11) of the IPC but the High Court converted the same to Section 304A of the IPC, the correctness of which is the main issue that falls for consideration. We have to first examine whether any prejudice had been caused to the first accused due to the alleged unfair and delayed trial as contended and who was primarily instrumental for the delay in completion of the trial and also whether any injustice had been caused to the accused due to the alleged judicial unfairness. 21.

The incident had occurred on 10. 01. 1999 and chargesheet against the accused was filed on 08. 04. 1999. Sixty one witnesses were examined on the side of the prosecution and nine witnesses were examined on the side of the defence and a large number of documents were produced including expert evidence before the trial court and the court finally rendered its judgment on 02. 09. 2008. When the trial was on, the part played by Sunil Kulkarni, one of the eye witnesses, who later turned hostile and the unholy alliance he had with the defence counsel etc. were also adversely commented upon by this court in R. K. Anand case (supra). The operative portion of which reads as follows: "Before laying down the records of the case we must also advert to another issue of great importance that causes grave concern to this Court. At the root of this odious affair is the way the BMW trial was allowed to be constantly interfered with till it almost became directionless.

" Further, the court held as follows: "Every trial that fails due to external interference is tragedy for the victim(s) of the crime. More importantly, every frustrated trial defies and mocks the society based on the rule of law. Every subverted trial leaves a scar on the criminal justice system. Repeated scars make the system unrecognisable and it then loses the trust and confidence of the people. " 22. We do not want to delve much into the background facts in R. K. Anand (supra) any further, but only to put question, but for the accused for whose benef•tne entire drama was played by Anand and Sunil Kulkarni. We have referred to the above judgment since an argument was raised by Shri Ram Jethmalani on the right of the accused for speedy trial and on judicial unfairness. Had the first accused been honest enough and wanted early disposal of the trial, he would have come out with the truth at the earliest opportunity.

Only after a protracted trial that too after examining sixty one witnesses and producing and proving a host of documents and after having been found guilty and convicted under Section 304(11) of the IPC and sentenced to five years rigorous imprisonment. wisdom dawned on the accused, that too, at the appellate stage. Learned senior counsel for the accused before the High Court then submitted that to narrow down the controversy, the accused is admitting the factum of the accident and that he was driving the BMW on the fateful morning of 10. 01. 1999. The High Court recorded the same as follows: "As already noticed, to narrow down the controversy, Mr. Ram Jethmalani very fairly conceded at the threshold of the arguments that he would proceed in the matter by admitting the factum of the accident and the appellant being on the driver seat on the fateful morning of 10th January, 1999, when the horrifying incident had taken place.

This admission on the part of the counsel for the appellant would mean that the appellant gives up his right to challenge the findings of the Lower Court so far as the factum of accident by the appellant while driving BMW car bearing registration No. M312LYP resulted in death of six persons and injury to one person on the morning of 10th January, 1999 near Car Care Centre petrol pump at Lodhi Road is concerned, despite the fact that several contentions have been raised by the appellant denying his involvement in the accident in the grounds of appeal. " 23. Shri Ram Jethmalani, as already pointed out, submitted that the first accused was seriously prejudiced due to the unfair and delayed trial, which was also commented upon by the High Court which reads as follows: "In any event of the matter, the appellant himself must share the burden of causing delay in the matter as with a view to hoodwink the prosecution and to escape from the clutches of law, he denied the factum of accident.

It is only at the stage of final arguments before the trial court and in appeal, the appe::llant turned hostile to accept occurrence of the said horrifying accident while driving BMW car bearing registration No. M-312-LYP. Certainly, a lot of lime could have been saved had the accused been honest from day one and admitted his guilt. " 8 24. Accused, though did not file any appeal against those findings, we heard his senior counsel at length on all points and we do not find any illegality in the reasoning of the trial court as well as the High Court which we fully concur with. Learned senior counsel, however, after admitting the factum of the acCident and that it was the accused, who was driving the car C. on the fateful day, causing death of persons, pointed out various factors which according to the counsel had contributed to the accident and hence no further enhancement of sentence is warranted. Drunken driving 25.

Learned senior counsel, appearing for the accused, as already pointed, has stated that there was nothing on record to prove that the first accused was intoxicated in the sense in which it is understood under Section 85 of the IPC nor in the sense that his ability to control the motor vehicle had been substantially impaired as a result of consumption of alcohol as laid down by Section 185 of the M. V. Act. Further, it was also stated that the first accused had driven the vehicle about 16 kms prior to the accident. If he was in a drunken state, he could not have driven the car for that much of distance. Further, it was also pointed out that the procedure laid down under Section 185 of the M. V. Act was not followed. Consequently, learned senior counsel pointed out that the courts have committed an error in holding that he was under the influence of liquor when the accident had happened.

In our view, both the courts below have rightly rejected those contentions raised by learned senior counsel. The scope of Section 185 is not what the senior counsel submits. Section 185 of the M. V. Act is extracted herein below: "Section 185 - Driving by a drunken person or by a person under the influence of drugs Whoever, while Driving, or attempting to drive, a motor vehicle,- (a) has, in his blood, alcohol exceeding 30 mg. per 100 ml.

of blood detected in a test by a breath analyser, or (b) is under this influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both. Explanation. -For the purposes of this section, the drug or drugs specified by the Central Government in this behalf, by notification in the Official Gazette, shall be deemed to render a person incapable of exercising proper control over a motor vehicle. " 26. Section 203 of the MV Act deals with Breath Tests. The relevant portion for our purpose is given below: "203. Breath tests.

- (1) A police officer in uniform or an officer of the Motor Vehicles Department, as may be authorized in this behalf by that Department, may require any person driving or attempting to drive a motor vehicle in a public place to provide one or more specimens of breath for breath test there or nearby, if such police officer or officer has any reasonable cause to suspect him of having committed an offence under section 185: JOO( JOO( JOO( JOO( JOO( JOO( (4) If a person, required by a police officer under subsection (1) or sub-section (2) to provide a specimen of breath for a breath test, refuses or fails to do so and the police officer has reasonable cause to suspect him of having alcohol in his blood, the police officer may arrest him without warrant except while he is at a hospital as an indoor patient. JOO( JOO( JOO( JOO( JOO( 'XXi. ' Section 205 deals with presumption of unfitness to drive which reads as follows: "205. Presumption of unfitness to drive.

- In any proceeding for an offence punishable under section 185 if it is proved that the accused when requested by a police officer at any time so to do, had refused, omitted or failed to consent to the taking of or providing a specimen of his breath for a breath test or a specimen of his blood for laboratory test, his refusal, omission or failure may, unless reasonable cause therefor is shown, be presumed to be a circumstance supporting any evidence given on behalf of the prosecution, or rebutting any evidence given on behalf of the defence, with respect to his condition at that time. " The accused, in this case, escaped from the scene of occurrence, therefore, he could not be subjected to Breath Analyzer Test instantaneously, or take or provide specimen of his breath for a breath test or a specimen of his blood for laboratory test. Cumulative effect of the provisions, referred to the above, would indicate that the Breath Analyzer Test has a different purpose and object.

The language of the above sections would indicate that the said test is required to be carried out only when the person is driving or attempting to drive the vehicle. The expressions "while driving" and "attempting to drive" in the above sections have a meaning "in praesenti". In such situations, the presence of alcohol in the blood has to be determined instantly so that the offender may be prosecuted for drunken driving. A Breath Analyzer Test is applied in such situations so that the alcohol content in the blood can be detected. The breath analyzer test could not have been applied in the case on hand since the accused had escaped from the scene of the accident and there was no question of subjecting him to a breath analyzer test instantaneously. All the same, the first accused was taken to AllMS hospital at 12. 29 PM on 10. 01. 1999 when his blood sample was taken by Dr. Madulika Sharma, Senior Scientific Officer (PW16).

While testing the alcohol content in the blood, she noticed the presence of 0. 115% weight/volume ethyl alcohol. The report exhibited as PW16/A was duly proved by the Doctor. Over and above in her cross-examination, she had explained that 0. 115% would be equivalent to 115 mg per 100 ml of blood and deposed that as per traffic rules, if the person is under the influence of liquor and alcohol content in blood exceeds 30 mg per 100 ml of blood, the person is said to have committed the offence of drunken driving. 27. Further, the accused was also examined on the morning of 10. 01. 1999 by Dr. T. Milo - PW10, Senior Resident, Department of Forensic Medicine, AllMS, New Delhi and reported as follows: "On examination, he was conscious, oriented, alert and cooperative. Eyes were congested, pupils were bilaterally dilated. The speech was coherent and gait unsteady. Smell of alcohol was present. " SANJEEV NANDA [K. S. RADHAKRISHNAN, J. ] 28.

Evidence of the experts clearly indicates the presence of alcohol in blood of the accused beyond the permissible limit, that was the finding recorded by the Courts below. Judgments referred to by the counsel that if a particular procedure has been prescribed under Sections 185 and 203, then that procedure has to be followed, has no application to the facts of this case. Judgments rendered by the House of Lords were related to the provision of Road Safety Act, 1967, Road Traffic Act, 1972 etc. in U. K. and are not applicable to the facts of this case. 29. We are in this case not merely dealing with a traffic violation or a minor accident, but an accident where six human beings were killed. we find no relevance in the argument that the accused was coming from a distance of 16 kms. before the accident, causing no untoward incident and hence it is to be presumed that he was in a normal state of mind.

First of all, that statement is not supported by evidence apart from the assertion of the accused. Assuming so, it is a weak defence, once it is proved that the person had consumed liquor beyond the prescribed limit on scientific evidence. This court in Kurban Hussain v. State [AIR 1965 SC 1616] approved the plea that simply because of the fact that no untoward incident had taken place prior to the occurrence of the accident, one cannot infer that the accused was sober and not in a drunken state. In the instant case, the presence of alcohol content was much more (i. e. 0. 115%) than the permissible limit and that the accused was in an inebriated state at the time of accident due to the influence of liquor and in the accident, six human lives were lost. 30. Drunken driving has become a menace to our society. Everyday drunken driving results in accidents and several human lives are lost, pedestrians in many of our cities are not safe.

Late night parties among urban elite have now become a way of life followed by drunken driving. Alcohol consumption impairs consciousness and vision and it becomes impossible to judge accurately how far away the objects are. When depth perception deteriorates, eye muscles lose their precision causing inability to focus on the objects. Further, in more unfavourable conditions like fog, mist, rain etc. , whether it is night or day, it can reduce the visibility of an object to the point of being below the limit of discernibility. In short, alcohol leads to loss of coordination, poor judgment, slowing down of reflexes and distortion of vision. 31. Punishment meted out to a drunken driver, is at least a deterrent for other such persons getting away with minor punishment and fine. Such incidents are bound to increase with no safety for pedestrians on the roads.

The contention raised by learned senior counsel that the accused was not under the influence of liquor or beyond the limit prescribed under the M. V. Act and he was in his senses and the victims were at fault being on the middle of the road, is without any substance and only to be rejected. Fog, visibility and speed 32. Learned senior counsel, as already indicated, pointed out that the morning of 10. 01. 1999 was a foggy one and that disrupted the visibility. Reference was made to the report exhibited as PW15/B, that of Dr. S. C. Gupta Director of Meteorological Department. Learned senior counsel pointed out that the presence of fog is a fact supported by the said report. Further, it was also pointed out that PW2 - Manoj Malik had also suggested the presence of fog and the absence of street light and all those factors contributed to the accident.

It was pointed out by the High Court that even, during the course of the arguments, there was no mention of the plea of fog nor was the ground taken in the appeal memorandum. Further, it was also pointed out that such an argument was never raised before the trial court as well. No case was built up by the defence on the plea of fog and in our view there is no foundation for such an argument. 33. Even going by the evidence of PW15 - Dr. S. C. Gupta and also the report exhibited as PW 15/B, there is nothing to show the presence of fog on the spot of the accident. PW15 Dr. Gupta's report stated the sky was mainly clear and there was no mention of the presence of mist or fog at the spot in the report. The visibility of 100 m of clear sky was reported by PW 15 in exhibit 15/B which would demolish the theory of fog at the spot of the accident and poor visibility. In our view, there is another fallacy in that argument.

Assuming that there was presence of fog, it was a duty of the accused either to stop the vehicle if the visibility was poor or he should have been more cautious and driven the vehicle carefully in a lesser speed so that it would not have blurred his vision. This never happened since the accused was in an inebriated state and the fact that six persons died practically on the spot would indicate that the vehicle was driven in a rash and negligent manner at an excessive speed. The plea of fog, even if its presence had been established, would only weaken the defence case and the trial court and the High Court had rightly rejected that plea. Driving without licence 34. Learned senior counsel, appearing for the accused, submitted that the first accused knows driving, though he does not have a licence duly issued by a licencing authority under the M. V. Act, 1988.

Learned senior counsel submitted that the accused had driven the vehicle in America and European countries and possesses a valid driving licence issued by the licencing authority of a State in the United States at the relevant point of time. Learned senior counsel, therefore, pointed out that the mere fact that he was not holding a driving licence would not mean that he does not know driving. 35. Learned senior counsel also submitted that there is no presumption in law that a person who has no licence does not know driving. Further, it was also pointed out that driving without a licence is an offence under M. V. Act and not under the Penal Code, unless and until it is proved that a person was driving a vehicle in a rash and negligent manner so as to attract Section 304A of the IPC. Admittedly, the first accused was not having an Indian licence at the time of accident though he had produced a licence issued by the Licencing Authority from a State in the United States.

A person who is conversant in driving a motor vehicle in the United States and European countries may not be familiar with the road conditions in India. In India, the driver is always on the defensive due to various reasons. Pedestrians in India seldom use footpaths nor respect Zebra lines or traffic lights, two wheelers, autorickshaws, cyclists and street-vendors are common sights on Indian roads. A driver in Indian roads should expect the unexpected always, therefore, the plea that the accused has an American driving licence is not an answer for driving in Indian roads unless it is recognized in India or that person is having a driving licence issued by the Licensing Authority in India. We have to necessarily draw an inference that the accused was not conversant in driving a vehicle on the Indian roads in the absence of an Indian licence at the time of the accident. Therefore, the judgment of this Court in Suleman Rahiman Mulani and Anr. V.

State of Maharashtra [AIR 1968 SC 829) that there is no presumption of law that a person who possesses only a learning licence or possesses no licence at all, does not know driving is inapplicable to the facts of this case. In any view, in the instant case, we have already found that the accused was in an inebriated state, therefore, the question whether he knew driving is not of much consequence. Duty of Driver. Passengers and Bystanders 36. We have found on facts that the accused had never extended any helping hand to the victims lying on the road and fled from the scene. Section 134 of M. V. Act. 1988 casts a duty on a driver to take reasonable steps to secure medical attention for the injured person. Section 134 of M. V. Act, 1988 reads as follows: "134. Duty of driver in case of accident and injury to a person.

- When any person is injured or any property of a third party is damaged, as a result of an accident in which a motor vehicle is involved, the driver of the vehicle or other person in charge of the vehicle shall - (a) unless it is not practicable to do so on account of mob fury or any other reason beyond his control, take all reasonable steps to secure medical attention for the injured person, by conveying him to the nearest medical practitioner or hospital, and it shall be the duty of every registered medical practitioner or the doctor on the duty in the hospital immediately to attend to the injured person and render medical aid or treatment without waiting for any procedural formalities, unless the injured person or his guardian, in case he is minor, desired otherwise; (b) give on demand by a police officer any information required by him or, if no police officer is present, report the circumstances of the occurrence, including the circumstances, if any, or not taking reasonable steps to secure medical attention as required under clause (a), at the nearest police station as soon as possible, and in any case within twenty-four hours of the occurrence; (c) give the following information in writing to the insurer, who has issued the certificates of insurance, about the occurrence of the accident, namely :- (i) insurance policy number and period of its validity; (ii) date, time and place of accident; (iii.

) particulars of the persons injured or killed in the accident; (iv. ) name of the driver and the particulars of his driving licence. Explanation. - For the purposes of this section, the expression "driver'' includes the owner of the vehicle. " Section 187 of the M. V. Act, 1988 provides for punishment relating to accident, which reads as follows: "187. Punishment for offence relating to accident. - Whoever fails to comply with the provisions of clause (c) of sub-section (1) of section 132 or of section 133 or section 134 shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both or, if having been previously convicted of an offence under this section, he is again convicted of an offence under this section, with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. " Of course, no proceedings were instituted against the a.

ccused in the case on hand invoking the above mentioned provisions, however, the unfortunate accident in which six persons were killed at the hands of the accused, prompted us to express our deep concern and anguish on the belief that, at least, this incident would be an eye-opener and also food for thought as to what we should do in future when such situations arise. This Court in Pt. Parmanand Katara v. Union of India (UOI) and Ors. [(1989) 4 SCC 286] pointed out that it is the duty of every citizen to help a motor accident victim, more so when one is the cause of the accident, or is involved in that particular accident. Situations may be there, in a highly charged atmosphere or due to mob fury, the driver may flee from the place, if there is a real danger to his life, but he cannot shirk his responsibility of informing the police or other authorized persons or good samaritans forthwith, so that human lives could be saved.

Failure to do so, may lead to serious consequences, as we see in the instant case. Passengers who are in the vehicle which met with an accident, have also a duty to arrange proper medical attention for the victims. Further they have · equal responsibility to inform the police about the factum of the accident, in case of failure to do so they are aiding the crime and screening the offender from legal punishment. 37. No legal obligation as such is cast on a bystander either under the Motor Vehicle Act or any other legislation in 8 India. But greater responsibility is cast on them, because they are people at the scene of the occurrence, and immediate and prompt medical attention and care may help the victims and their dear ones from unexpected catastrophe. Private hospitals and government hospitals, especially situated near the Highway, where traffic is high, should be equipped with all facilities to meet with such emergency situations.

Ambulance with all medical facilities including doctors and supporting staff should be ready, so that, in case of emergency, prompt and immediate medical attention could be given. In fact, this Court in Paschim Banga Khet Mazdoor Samiti and Ors. V. State of-West Bengal and Ors. (1996) 4 SCC 37, after referring to the report of Justice Lilamoy Ghose, a retired Judge of the Calcutta High Court, gave various directions to the Union of India and other States to ensure immediate medical attention in such situations and to provide immediate treatment to save human lives. Law Commission in its 201 st report dated 31. 8. 2006 had also made various recommendations, but effective and proper steps are yet to be taken by Union of India and also many State Governments. We call for the immediate attention of the Union of India and other State Governments, if they have not already implemented those directions, which they may do at the earliest. 38.

Seldom, we find that the passing vehicles stop to give a helping hand to take the injured persons to the nearby hospital without waiting for the ambulance to come. Proper attention by the passing vehicles will also be of a great help and can save human lives. Many a times, bystanders keep away from the scene, perhaps not to get themselves involved in any legal or court proceedings. Good Samaritans who come forward to help must be treated with respect and be assured that they will have to face no hassle and will be properly rewarded. We, therefore, direct the Union of India and State Governments to frame proper rules and regulations and conduct awareness programmes so that the situation like this could, to large extent, be properly attended to and, in that process, human lives could be saved. Hostile Witnesses 39. We notice, in the instant case, the key prosecution witnesses PW1 - Harishankar, PW2 - Manoj Malik, PW3 - Sunil Kulkarni turned hostile.

Even though the above mentioned witnesses turned hostile and Sunil Kulkarni was later examined as court witness, when we read their evidence with the evidence of others as disclosed and expert evidence, the guilt of the accused had been clearly established. In R. K. Anand (supra), the unholy alliance of Sunil Kulkarni with the defence counsel had . been adversely commented upon and this Court also noticed that the damage they had tried to cause was far more serious than any other prosecution witness. 40. Witness turning hostile is a major disturbing factor faced by the criminal courts in India.

Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry· the impression that the mighty and powerful can always get away from the clutches of law thereby, eroding people's faith in the system. This court in State of U. P. v. Ramesh Mishra and Anr. [AIR 1996 SC 2766] held that it is equally settled law that the evidence of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In K. Anbazhagan v. Superintendent of Police and Anr.

[AIR 2004 SC 524), this Court held that if a court finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a whole with due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court and they found the accused guilty. 41. We cannot, however, close our eyes to the disturbing fact in the instant case where even the injured witness, who was present on the spot, turned hostile. This Court in Sidhartha Vashisht @ Manu Sharma v. State (NCT o Delhi) [(2010) 6 SCC 1] and in Zahira Habibullah Shaikh v.

State of Gujarat [AIR 2006 SC 1367] had highlighted the glaring defects in the system like non-recording of the statements correctly by the police and the retraction of the statements by the prosecution witness due to intimidation, inducement and other methods of manipulation. Courts, however, cannot shut their eyes to the reality. If a witness becomes hostile to subvert the judicial process, the Courts shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 of the IPC imposes punishment for giving false evidence but is seldom invoked. Section 304(11) or Section 304A of the IPC 42. We may in the above background examine whether the offence falls under Section 304(11) of the IPC or Section 304A of the IPC from the facts unfolded in this case.

Shri Raval, appearing for the State, as already indicated, argued that the facts of this case lead to the irresistible conclusion that it would fall under Section 304(11) of the IPC. Learned counsel pointed out that the accused after having noticed that the speeding car had hit several persons, left the spot without giving any medical aid or help knowing fully well that his act was likely to cause death. Learned counsel pointed out that in any view, it would at least fall under Section 304(11) of the IPC. 43. Shri Ram Jethmalani, on the other hand, submitted that Section 304(11), will never apply in a case of this nature, 8 especially in the absence of any premeditation. Learned senior counsel submitted that the accused entertained no knowledge that his action was likely to cause death assuming he was rash and negligent in driving the car.

Learned senior counsel pointed out that the offence of culpable homicide presupposes an intention or knowledge and the intention must be directed either deliberately to put an end to human life or to some act which to the knowledge of the accused is likely to eventuate iro putting an end to human life. Learned senior counsel submitted that the accused had no such knowledge either before or immediately after the accident. 44. First we will examine the scope of section 304A of the IPC which reads as follows: "304A. Causing death by negligence. - 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.

" On reading the above mentioned provision, the following requirements must be satisfied before applying this section: (i) Death must have been caused by the accused; (ii) Death caused by rash or negligent act; (iii) Rash and negligent act must not amount to culpable homicide. SANJEEV NANDA [K. S. RADHAKRISHNAN, J. ] Section 304A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide not amounting to murder under Section 299 or murder under Section 300. Section 304A excludes all the ingredients of Section 299 or Section 300. 45. The above mentioned section came up for consideration in Haidarali Kalubhai (supra) wherein this Court held as follows: "Section 304A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide u/s 299 IPC or murder u/s 300 IPC.

If a person willfully drives a motor vehicle in the midst of a crowd and thereby causes death to some persons, it will not be a cause of mere rash and negligent driving and the act will amount to culpable homicide. Each case will, therefore, depend upon the particular facts established against the accused. " Before elaborating and examining the above principle laid down by this court, we will refer to sections 299, 300, 304A of the IPC. Section 299 A person commits culpable homicide if the act by which the death is caused is done ******** (c) with the knowledge that he is likely to cause death. Section 300 Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done ******** .

A (4) with the knowledge that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. "304. Punishment for culpable homicide not amounting to murder. - Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. " 46.

Section 299 of the IPC defines culpable homicide as an act of causing death (i) with the intention of causing death; (ii) with the intention of causing some bodily injury as is likely to cause death; and (iii) with the knowledge that such act is likely to cause death. The first and second clauses of the section refer to intention apart from knowledge and the third clause refers to knowledge apart from intention. "Intention" and "knowledge" postulate the existence of positive mental attitude. The expression 'knowledge' referred to in section 299 and section 300 is the personal knowledge of the person who does the act. To make out an offence punishable under Section 304(11) of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew such act of his is likely to cause death. 47. Section 304A, as already indicated, carves out a SANJEEV NANDA [K. S. RADHAKRISHNAN, J.

) specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide not amounting to murder under Section 299 or murder under Section 300. The scope of the above mentioned provisions came up for consideration before this court in the judgment of Naresh Giri v. State of M. P. [(2008) 1 SCC 791]; wherein this court held as follows: "Section 304A IPC applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304A. " 48.

In a recent judgment, in AlisterAnthony Pareira (supra), this Court after surveying a large number of judgments on the scope of Sections 304A and 304(11) of the IPC, came to the conclusion that in a case of drunken driving resulting in the death of seven persons and causing injury to eight persons, the scope of Sections 299, 300 and 304(1) and (II) of the IPC stated to be as follows: "Each case obviously has to be decided on its own facts. In a case where negligence or rashness is the cause of death and nothing more, Section 304A may be attracted but where the rash or negligent act is preceded with the knowledge that such act is likely to cause death, Section 304 Part II Indian Penal Code may be attracted and if such a rash and negljgent act is preceded by real intention on the part of the. wrong doer to cause death, offence may be punishable under Section 302 Indian Penal Code.

" On facts, the court concluded as follows: ''The facts and circumstances of the case which have been proved by the prosecution in bringing home the guilt of the accused under Section 304 Part II Indian Penal Code undoubtedly show despicable aggravated offence warranting punishment proportionate to the crime. Seven precious human lives were lost by the act of the accused. For an offence like this which has been proved against the Appellant, sentence of three years awarded by the High Court is too meagre and not adequate but since no appeal has been preferred by the State, we refrain from considering the matter for enhancement. By letting the Appellant away on the sentence already undergone i. e. two months in a case like this, in our view, would be travesty of justice and highly unjust, unfair, improper and disproportionate to the gravity of crime. It is true that the Appellant has paid compensation of Rs.

8,50,000/- but no amount of compensation could relieve the family of victims from the constant agony. As a matter of fact, High Court had been quite considerate and lenient in awarding to the Appellant sentence of three years for an offence under Section 304 Part II Indian Penal Code where seven persons were killed. " 49. In Jagriti Devi v. Slate of Himacha/ Pradesh [(2009) 14 SCC 771]; wherein the Bench of this Court held that it is trite law that Section 304 Part II comes into play-when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death. 50. One of the earlier decisions of this Court in State of Andhra Pradesh v.

Rayavarapu Punnayya and Another [(1976) 4 SCC 382], this Court succinctly examined the distinction between Section 299 and Secti9n 300 of the IPC and in para 12 of the Judgment and held as follows: "In the scheme of the Penal C? de, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the 1st part of Section 304. Then, there is 'culpable homicide of the third degree.

' This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest amqng the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section 304. " 51. Referring to para 14 of that judgment, the Court opined that the difference between Clause (b) of Section 299 and Clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. The word "likely" in Clause (b) of Section 299 conveys the sense of 'probable' as distinguished from a mere possibility. The words "bodily injury... sufficient in the ordinary course of nature to cause death'" mean that death will be the "most probable" result of the injury having regard to the ordinary course of nature.

Ultimately, the Court concluded as follows: "From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder,' on" the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as