Case: Alister Anthony Pareira Vs. State of Maharashtra

repair and construction work of the Carter Road, Bandra (West) at the relevant time was being carried out by New India Construction Company. The labourers were engaged by the construction company for executing the works. The temporary sheds (huts) were put up for the residence of labourers on the pavement. In the night of November 11, 2006 and November 12, 2006, the labourers were asleep in front of their huts on the pavement. Between 3.45 to 4.00 a.m., that night, the appellant while driving the car (corolla) bearing Registration No. MH-01-R-580 rashly and negligently with knowledge that people were asleep on footpath rammed the car over the pavement; caused death of seven persons and injuries to eight persons. At the time of incident, the appellant was found to have consumed alcohol. A liquor bottle was recovered from the appellants car. On his medical examination, he was found to have 0.112% w/v liquor (ethyl alcohol) in his blood. The appellant was fully familiar with the area being the resident of Carter Road.3. The contractor--Panchanadan Paramalai Harijan (PW-2) - who had engaged the labourers and witnessed the incident reported the matter immediately to the Khar Police Station. His statement (Ex. 13) was recorded and based on that a first information report (No. 838) was registered under Section 304, 279, 336, 337, 338 and 427 IPC; Section 185 of the Motor Vehicles Act, 1988 and Section 66 (1)(b) of Bombay Prohibition Act, 1949.4. On completion of investigation, the charge sheet was submitted against the appellant by the Investigating Officer in the court of Magistrate having jurisdiction. The appellant was committed to the Court of Sessions and was tried by 2nd Adhoc Additional Sessions Judge, Sewree, Mumbai.5. The indictment of the appellant was on two charges. The two chargesthat on November 12, 2006 between 3.45 to 4.00 a.m. you have driven the car bearing No. MH-01-R-580 rashly and negligently with knowledge that people are sleeping on footpath and likely to cause death of those persons slept over footpath and thereby caused the death of seven persons who were sleeping on footpath on Carter Road and thereby committed an offence punishable under Section 304 Part II IPC.(ii) on above date, time and place you have driven the vehicle in rashly and negligent manner and thereby caused grievous injury to seven persons who were sleeping on footpath and thereby committed an offence punishable under Section 338 IPC.The prosecution, to prove the above charges against the appellant, tendered oral as well as documentary evidence. In all, 18 witnesses, namely, Dr. Nitin Vishnu Barve (PW-1), Panchanadan Paramalai Harijan (PW-2), Ramchandra Chakrawarti (PW-3), Pindi Ramu (PW-4), Sriniwas Raman Pindi (PW-5), Smt. Mariamma Shingamana (PW-6), Smt. Prema Chingaram (PW-7), Jagan Singaram (PW-8), Sigamani Shankar Pani (PW-9), Mallikarjun Bajappa Motermallappa (PW-10), J.C. Cell Mendosa (PW-11), Praveen Sajjan Mohite (PW- 12), Limbaji Samadhan Ingle (PW-13), Dr. Sharad Maniklal Ruia (PW-14), Rajendra Nilkanth Sawant (PW- 15), Basraj Sanjeev Mehetri (PW-16), Meenakshi Anant Gondapatil (PW-17) and Somnath Baburam Phulsunder (PW-18) were examined. The complaint, spot panchnama along with sketch map, C.A. Reports and other documents were also proved.7. The statement of the appellant under Section 313 of the Criminal Procedure Code, 1973 (for short, `the Code) was recorded. He admitted that he was driving the car no. MH-01-R-580 at the relevant time and the accident did occur but his explanation was that it happened on account of failure of engine and mechanical defect in the car and there was no negligence or rashness on his part.8. The 2nd Adhoc Additional Sessions Judge, Sewree, Mumbai, on April 13, 2007 convicted the appellant for the offences punishable under Sections 304A and 337 IPC. The court sentenced him to suffer simple imprisonment of six months with fine of Rs. 5 lakhs for the offence under Section 304A IPC and in default further suffer simple imprisonment of one month and simple imprisonment of 15 days for the offence under Section 337 IPC. Both the sentences were ordered to run concurrently.9. On April 19, 2007, the Bombay High Court took suo motu cognizance of the judgment and order dated April 13, 2007 passed by the 2nd Adhoc Additional Sessions Judge, Sewree and issued notice to the State of Maharashtra, the appellant and to the heirs of the deceased and also to the injured persons.10. The State of Maharashtra preferred criminal appeal (No. 566 of 2007) under Section 378(3) of the Code challenging the acquittal of the appellant under Sections 304 Part II and 338 IPC. Another criminal appeal (No. 430 of 2007) was also preferred by the State of Maharashtra seeking enhancement of sentence awarded to the appellant for the offence under Section 304A and Section 337 IPC by the trial court.11. The appellant also preferred criminal appeal (No. 475/2007) for setting aside the judgment and order dated April 13, 2007 passed by the trial court convicting him under Section 304A and Section 337 IPC and the sentence awarded to him by the trial court.12. All these matters were heard together by the High Court and have been disposed of by the common judgment on September 6, 2007. The High Court set aside the acquittal of the appellant under Section 304 IPC and convicted him for the offences under Section 304 Part II, Section 338 and Section 337 IPC. The High Court sentenced the appellant to undergo rigorous imprisonment for three years for the offence punishable under Section 304 Part II IPC with a fine of Rs. 5 lakhs. On account of offence under Section 338 IPC, the appellant was sentenced to undergo rigorous imprisonment for a term of one year and for the offence under Section 337 IPC rigorous imprisonment for six months. The High Court noted that fine amount as per the order of the trial court had already been distributed to the families of victims.13. It is from the above judgment of the High Court that the present appeals have been preferred by the appellant.

Reasoning:
our opinion there is no impediment in law for an offender being charged for the offence under Section 304 Part II IPC and also under Sections 337 and 338 IPC. The two charges under Section 304 Part II IPC and Section 338 IPC can legally co-exist in a case of single rash or negligent act where a rash or negligent act is done with the knowledge of likelihood of its dangerous consequences.44. By charging the appellant for the offence under Section 304 Part II IPC and Section 338 IPC - which is legally permissible - no prejudice has been caused to him. The appellant was made fully aware of the charges against him and there is no failure of justice. We are, therefore, unable to accept the submission of Mr. U.U. Lalit that by charging the appellant for the offences under Section 304 Part II IPC and Section 338 IPC for a rash or negligent act resulting in injuries to eight persons and at the same time committed with the knowledge resulting in death of seven persons, the appellant has been asked to face legally impermissiblecannot be said that the appellant was not made fully aware of the prosecution evidence that he had driven the car rashly or negligently in a drunken condition. He had full opportunity to say what he wanted to say with regard to the prosecution evidence.We have also carefully considered the evidence let in by prosecution - the substance of which has been referred to above - and we find no justifiable ground to take a view different from that of the High Court. We agree with the conclusions of the High Court and have no hesitation in holding that the evidence and materials on record prove beyond reasonable doubt that the appellant can be attributed with knowledge that his act of driving the vehicle at a high speed in the rash or negligent manner was dangerous enough and he knew that one result would very likely be that people who were asleep on the pavement may be hit, should the vehicle go out of control. There is a presumption that a man knows the natural and likely consequences of his acts. Moreover, an act does not become involuntary act simply because its consequences were unforeseen. The cases of negligence or of rashness or dangerous driving do not eliminate the act being voluntary. In the present case, the essential ingredients of Section 304 Part II IPC have been successfully established by the prosecution against the appellant. The infirmities pointed out by Mr. U.U. Lalit, learned senior counsel for the appellant, which have been noticed above are not substantial and in no way affect the legality of the trial and the conviction of the appellant under Section 304 Part II IPC. We uphold the view of the High Court being consistent with the evidence on record and law.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 IPC 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 IPC where seven persons were killed.80. We are satisfied that the facts and circumstances of the case do not justify benefit of probation to the appellant for good conduct or for any reduction of