IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 57-DB of 2005 Date of Decision : January 22, 2008 Ganesh son of Mool Chand … Appellant Versus The State of Punjab. .. Respondent CORAM : HON’BLE MR. JUSTICE ADARSH KUMAR GOEL, HON’BLE MR. JUSTICE S.D. ANAND. Present : Ms. Gita Sharma, Advocate, for the appellant. Mr. Rajesh Bhardwaj, Deputy Advocate General, Punjab, for the respondent. S.D. Anand, J. Appellant – Ganesh is in appeal against his conviction by the learned Trial Judge for offences under Sections 302 and 307 of the Indian Penal Code. The appellant was directed to undergo life imprisonment and to pay a fine of Rs. 5,000/- for the offence under Section 302 of the Indian Penal Code. For the offence under Section 307 of the Indian Penal Code, he was directed to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2,000/-. A vivid close up of the sequence and consequence of the traumatic event culminating in the impugned accident is essential as factual foundation for the decision of the appeal. On 01.12.2002, a marriage party pertaining to the marriage of Joginder Pal, a nephew of Kewal Krishan Mehta, complainant (PW6) was proceeding from Shivala Bhayian towards Royal Palace. When the marriage party was in the process of going across the road, the appellant came to that side while he was on the wheels of truck bearing registration No. RJ-13G-1650 (hereinafter referred to as the offending vehicle). All the Crl. Appeal No.57-DB of 2005 members of the marriage party gave signal to the appellant to bring the vehicle to a halt but he did not bother and intentionally brought the offending vehicle towards the members of the marriage party. Though the members of the marriage party tried to move towards their left and right hand side in order to avoid getting crushed, the appellant did not bring the vehicle to a halt and ran over them with intention of killing them. Kartik son of Rakesh Kumar, Kewal Krishan son of Ram Lal, Darshan Kumar son of Jagdish Raj, Jaspal Singh son of Kehar Singh and Usha Rani wife of Madan Lal died at the spot itself; while Dalip Kumar son of Bhola Singh and Rama wife of Varinder Kumar sustained injuries. The offending vehicle could be brought to a halt only after it had covered a distance of about 100 yards. The appellant was over -powered by those available over there. The prosecution produced PW6 - Kewal Krishan Mehta, PW7 – Rama Sharma and PW8 – Ram Kishan to prove the ocular version at the trial. PW1 – Dr. Manpreet Kaul (Junior Resident) had conducted the post mortem examination on the dead body of Kartik son of Rakesh Kumar, Kewal Krishan son of Ram Lal, Darshan Kumar son of Jagdish Raj, Jaspal Singh son of Kehar Singh and Usha Rani wife of Madan Lal. One crushed lacerated wound (36 x 13 cms) and three abrasions were found on the dead body of Kartik. One lacerated wound (6x4 cms), two crushed lacerated wounds (68x16 cms and 25x18cms) and number of abrasions were found on the dead body of Kewal Krishan. Three crushed lacerated wounds (23x18.5 cms, 29x11.5 cms and 11.5x4.5 cms) and one reddish brown abrasion (8.5 x 3.5 cms) were found on the dead body of Darshan Kumar. Two crushed lacerated wounds (8.5 x 5.2 cms and 13.8 x 4.5 cms), one lacerated wound (1.2 x 1 cms), two grazed abrasions (11.2 x 5.8 cms and 4.5 x 2.3 cms) and multiple reddish brown abrasions (12 in number) were found on the dead 2 Crl. Appeal No.57-DB of 2005 body of Jaspal Singh. On dissection, the left tibia and fibula were found fractured. Three crushed lacerated wounds (29x16.5 cms, 14.2 x 4.5 cms and 23 x 7.5 cms) and one lacerated wound (13x22 cms) were found on the dead body of Usha Rani. On dissection, it was found that humerous and left shoulder bones were fractured and ribs on right side 3 to 8 and on left side 3 to 7 were found fractured anteriorly. PW2 – Dr. Gurpreet Singh Sodhi (Junior Resident) has medical legally examined Dalip Kumar who was found to have three wounds on his person. He remained hospitalized from 01.12.2002 to 03.12.2002. PW9- Dr. Ajay Abrol (Orthopaedic Surgeon) had operated upon Rama for amputation of a leg. PW10- ASI Anil Kumar is the Investigating Officer of the case. PW3 – ASI Kapil Kishore had photographed the spot on receipt of a telephonic message from the police and proved photographs Ex.P8 to Ex.P13 and also their negatives Ex.P1 to Ex.P7. PW4 – Const. Gurbachan Singh, a motor mechanic posted in the MT Branch Workshop, Police Lines, Amritsar, had mechanically tested the offending vehicle and given report Ex.PL. It was recorded in the report that the window panes of the vehicle had been broken and the vehicle was burnt. The other witnesses gave testimony which is formal in character. The appellant set up a plea of innocence and alleged false implication at the instance of the prosecution witnesses. No evidence was adduced in defence. The prosecution plea was upheld and plea of innocence raised by the appellant was declined by the learned Trial Court which proceeded to pass the above quoted order on point of sentence. Ms. Gita Sharma, the learned counsel appearing on behalf of the appellant, argues at the very outset that the impugned occurrence was nothing more than an accident and there was no logic on the part of the 3 Crl. Appeal No.57-DB of 2005 learned Trial Court to have convicted the appellants for the commission of offences under Section 302 and 307 of the Indian Penal Code. In that context, the learned counsel placed implicit reliance upon the fact that in the inquest report, it was categorically indicated that the death of Kartik son of Rakesh Kumar, Kewal Krishan son of Ram Lal, Darshan Kumar son of Jagdish Raj, Jaspal Singh son of Kehar Singh and Usha Rani wife of Madan Lal had occurred in a road accident. The plea is specious on the face of it. Ostensibly, it was indeed a case in which certain casualties had occurred and certain persons had been injured in the course of the driving of the offending vehicle by the appellant. Even the prosecution presentation at the trial does not dispute that fact. However, the plea raised on behalf of the appellant is plainly oblivious of the consistent testimony of PWs to the effect that the offending vehicle had been pointedly signalled to come to a halt by some members of the marriage party which (marriage party) was in the process of crossing the road. It is also in the consistent testimony of the witnesses that the marriage party was following the bride groom who was riding a mare and further that the band was playing and electric lights were being carried by members of the band. It is in the further testimony of PW6- Kewal Krishan Mehta, complainant, that the place of occurrence is thickly populated area of Amritsar City. It is also in his testimony that the `Barat’ consisted of more than 60 persons, besides the members of the band party and the “electric tube party”. That there were many marriages (being solemnized) in that vicinity on that night was also testified by him. This witness quantified the speed of the offending vehicle at 50 km per hour. The present is, thus, not a case where an accident had occurred on a National Highway or an adequately wide road. It is also not a case 4 Crl. Appeal No.57-DB of 2005 where a cyclist came into contact with an automobile and received fatal injuries or non-fatal injuries. Law is certainly not a static entity. While being cognizant of the legal phraseology of an offence, the Courts cannot and should not withhold the process of evolution which is the compulsive outcome of a civilisation which, in the light of the strides being made on various fronts including automobiles, is coming of age. A particular piece of Legislation can also not be interpreted in isolation from the attendant circumstances. As per the proven facts on the file, the appellant was driving the offending vehicle at the speed of 50 km per hour. The marriage party was in the process of going across the road. A number of marriages were being solemnized in that vicinity on that night. The place was a thickly populated area. The playing of band and the carrying of electric lights by the members of the party made the presence of the barat pointedly noticeable. The unambiguous evidence is to the effect that the members of the marriage party had signalled the appellant to bring the offending vehicle to a halt. In view, thus, of the above facts, the act of the appellant in having driven the offending vehicle at the above indicated speed in a thickly populated area and is not having brought the vehicle to a halt even in the face of signal from the members of the marriage party, it can be validly inferred that he did have the knowledge that he was likely to cause death by his act aforementioned. This aspect came up for consideration before a Division Bench of this Court in Court on its own motion versus State of Punjab and others in Civil Writ Petition No. 11470 of 2000. The following discussion recorded by this Court in the context would be very relevant for adjudication of the point under reference by this Court:- 5 Crl. Appeal No.57-DB of 2005 “We have considered the matter very carefully and are of the opinion that in cases of extreme recklessness or negligence, a driver cannot be said to be guilty of merely committing a rash or negligent act to be booked under Section 304-A of the Indian Penal Code as in certain cases the act may amount to culpable homicide not amounting to murder and in the most extra-ordinary of cases, may even amount to murder. We record, in short, the reasons for our opinion. Section 304-A of the Indian Penal Code reads as under:- Causing death by negligence:- Whoever causes the death of any person by doing any rash and negligent act not amounting to culpable homicide, shall be punished with imprisonment of either discreption for a term which may extend to two years, or with fine, or with both.” In Empress of India v. Idu Beg, I.L.R. 3, Allahabad, 776, it was observed that criminal rashness is “hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury but without intention to cause injury or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness of indifference as to consequences.” In Bharosi v. State, AIR, 1957, MP, 236, the words `rashness’ and `negligence’ have been elucidated thus:- “Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that they will not. And negligence is a breach of duty imposed by 6 Crl. Appeal No.57-DB of 2005 law. In criminal cases, the amount and degree of negligence are the determining factors. According to Russel on Crime (1950 Ed) p. 641, there must be mensrea in the criminal negligence also. The learned author has said that Judges have used many epithets to describe negligence, such as `culpable’, `criminal’, `gross’, `wicked’, or `complete negligence’. But whatever epithet be used….. in order to establish criminal liability, the facts must be such that the negligence of the accused went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime”. To answer the question posed by us, section 304-A would have to be read along with Section 299 which defines culpable homicide and Section 300 which enumerates the circumstances in which culpable homicide may amount to murder. Section 299 and clause 4thly of section 300 which are relevant for our purpose are reproduced below:- “299. Culpable homicide. Whoever causes the death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” 300. Murder – Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or ..... 7 Crl. Appeal No.57-DB of 2005 2ndly xx xx xx 3rdly xx xx xx 4thly of Section 300 “If the person committing the act knows 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.” It will be evident from a reading of the second part of Section 299 and clause 4thly of section 300 that they do not talk about `intention’ but make reference to the fact that a person committing such an act must have the knowledge that he could cause death or bodily injury. The two sections, however, differ in one material aspect inasmuch that while section 299 visualises that death was likely to be caused by a particular act, section 300 pre supposes (inter-alia) that the act committed was so imminently dangerous that it must in all probability cause death or is likely to cause death. It is, therefore, the nature of the act, which would bring the matter within either section 299 or section 300. This distinction has been clearly brought about in Queen vs. Gora Chand Gopee and others, reported as 1866, Weekly Reporter, Criminal, 45, and by the Hon’ble Supreme Court in State of Madhya Pradesh v. Ram Prasad, A.I.R. 1968 Supreme Court 881. In this case, Ram Prasad had quarrelled with his mistress Mst. Rajji and in the heat of moment had poured kerosene oil on her and set her alight. The trial Court acquitted him of the charge of murder 8 Crl. Appeal No.57-DB of 2005 and convicted him for an offence under Section 324 of the Indian Penal Code. The High Court in appeal set-aside the judgment of the trial Court and convicted him under Section 304-II. The matter was taken to the Supreme Court by the State and while discussing clause fourthly of Section 300 of the Indian Penal Code, it was observed that Ram Prasad’s act was covered by that clause and convicted him under Section 302 of the Indian Penal Code by holding:- “Although clause fourthly is usually invoked in those cases where there is no intention to cause the death of any particular person (as the illustration shows) the clause may on its terms be used in those causes where there is such callousness towards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death.” The above observations clearly underline the view that it would be the nature of act that would determine the gravity and nature of the offence.” Being pained at the traumatising rising figures of accident cases, this Court had taken up the relevant matter on its own motion and, after analysing the entire law in the context, recorded the above quoted observations. The grim scenario, evidenced by the proven prosecution presentation, actuates us to fabricate the view that in the given circumstances of the case, the appellant did have the knowledge that by driving a heavy vehicle at that speed in a thickly populated area, he was 9 Crl. Appeal No.57-DB of 2005 likely to cause death of the members of the marriage party whose signals to bring the vehicle to a halt were ignored by him. His conduct becomes all the more culpable in view of the fact that the marriage party, which was 50 strong, was accompanied by a band and `electric tube party’ and was led by a bridegroom aboard a mare. In the light of the perspicacious analysis recorded by us in the foregoing paras, we hold that the appellant ought to have been convicted for offence under Section 304(II) and Section 307 of the Indian Penal Code and we order accordingly. As a consequence of the modification aforementioned, it is ordered that the appellant shall undergo rigorous imprisonment for ten years under Section 304 (II) of the Indian Penal Code. In addition thereto, he would be liable to pay Rs.50,000/- each to the heirs of the deceased and Rs. 20,000/- each to the injured. That payment shall be made within six months from today. In default of that payment, the appellant shall undergo further rigorous imprisonment for six months. This compensation would be in addition to any other claim which the heirs of the deceased or the injured may be entitled to raise at law. ( S.D. ANAND ) JUDGE January 22, 2008 ( ADARSH KUMAR GOEL ) vkd JUDGE Note : Whether to be referred to reporter : Yes/No 10