TMI Blog2012 (8) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... ls as unfolded by prosecution are mentioned herein below: 5. On the intervening night of 9/10.01.1999, an unfortunate motor accident took place involving BMW Car No. M-312 LYP. At the relevant point of time, it is no more in dispute that offending vehicle BMW was being driven by Respondent. As per prosecution story, the said vehicle was coming from Nizamuddin side and was proceeding towards Lodhi Road. Just at the corner from where Lodhi Road starts, seven persons were standing on the road at about 4.00 a.m. In the said car, Manik Kapur and Sidharth Gupta (since discharged) were also sitting. 6. As per prosecution story, Manoj Malik (P.W. 2) had started from his house to leave friends Nasir, Mehendi Hasan and his friend Gulab at Nizamudin Railway Station on foot. When they reached the petrol pump of Lodhi Road, three police officials of checking squad, Constables Rajan, Ram Raj and Peru Lal, stopped them and started checking. In the meantime, BMW car driven rashly and negligently came from Nizamuddin side at a high speed and dashed violently against them. The impact was so great and severe, that they flew in the air and fell on the bonnet and wind screen of the car. Some of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 150 feet. Head of one person was found crushed. There were skid marks of the tyres of the vehicle on the spot for a long distance. The body of another constable namely, Ram Raj was found crushed and his right leg was found at a distance of 10 to 15 feet away. Abdomen of Constable Rajan Kumar was completely ripped open and blood was oozing out on the road. All the three dead bodies were sent to All India Institute of Medical Sciences (AIIMS) by ambulance. 11. Thus, it was clear to SI Kailash Chand that offending vehicle was a black colour BMW car having the aforesaid number plate. Looking to the nature of crime said to have been committed, he recommended registration of FIR under Section 338/304 Indian Penal Code. The said Rukka was dispatched to the Police Station, where formal FIR was registered. 12. S.I. Jagdish Pandey (P.W. 13) also reached the spot. He found a trail of oil on the road starting from the scene of offence. He, thus followed the trail and was able to reach 50 Golf Links. The gate of the house was closed. Jagdish P.W. 13 peeped through the side hinges of the gate, and found accused Rajeev Gupta, Bhola Nath and Shyam Singh washing damaged black BMW car. He tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me is well corroborated by the scene of crime. 17. On conclusion of trial, after appreciating the evidence available on record, the trial court found Respondent guilty of commission of offence under Section 304 Part II of the Indian Penal Code and awarded him a jail sentence of five years. He was acquitted of other charges. However, accused Rajeev Gupta, Shyam Singh and Bhola Nath were convicted under Section 201 Indian Penal Code. Rajeev Gupta was sentenced to undergo a sentence of one year and Bhola Nath and Shyam Singh to undergo a sentence of six months each. 18. Feeling aggrieved by the said judgment and order of conviction, Respondent filed Criminal Appeal No. 807 of 2008 in the High Court of Delhi at New Delhi. Co-accused, Rajeev Gupta, Bhola Nath and Shyam filed Criminal Appeals No. 767 of 2008 and 871 of 2008 respectively against their conviction and sentences awarded to them under Section 201 of the Indian Penal Code. 19. The learned Single Judge considered the matter at great length and thereafter found the accused Sanjeev Nanda guilty of commission of offence under Section 304 A of the Indian Penal Code and reduced the sentence to two years. While converting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccident. c) He was driving a powerful machine like BMW in excessive speed in a rash and negligent manner and certainly beyond reasonable control over it. d) His negligence coupled with intoxication would lead to culpable homicide with knowledge. e) He knew that persons have been crushed and some of them were underneath his car, yet he continued to drive the vehicle till all the injured were disentangled from the vehicle. f) He fled away from the scene of crime, did not render any help to the injured. Not only this, he did not report the matter to the police and tried to obliterate the evidence available. g) Even if intention may not be attributed to him but at least he had knowledge of what he had done, thus ingredients mandated under Section 304 Part II Indian Penal Code were fully met. h) Thus, High Court committed grave error in interfering with a well reasoned order of the Trial Court. Respondent should thus be held guilty of commission of offence under Section 304 Part II Indian Penal Code and sentence be awarded accordingly. 24. We have been taken through almost the entire documentary and oral material evidence adduced by prosecution. Following auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars awarded by High Court and only thereafter, after the period of limitation of filing the appeal had expired, he got married to his long time love, now they are blessed with a daughter. d) His behaviour and conduct in jail was extremely good, which is evident from the two affidavits filed in support of the Respondent by two NGOs. e) Fact cannot be given a go-by that it was a cold wintry night of 9/10th January, 1999, thus possibility cannot be ruled out that visibility must have been poor due to fog. f) He had neither any previous criminal record nor has been involved in any criminal activity ever since then. The case of Alister Anthony (supra) does not apply to the facts of this case. g) It was contended that Respondent has already learnt sufficient lesson at young age and no useful purpose would be served, if he is sent to jail again. h) The victim and/or families of deceased have been paid handsome amount of compensation of ₹ 65 lacs, in the year 1999 itself, i.e. ₹ 10 lacs each to the families of the deceased and ₹ 5 lacs to the injured. i) It would not only be humiliating but great embarrassment to the Respondent, if he is again sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that certain amount of alcoholic contents was still found on examination of his blood at 12.00 noon, next day. 29. 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. In AIR 1936 PC 253 (2) Nazir Ahmad v. King Emperor, it has been held as follows: .... The rule which applies is a different and not less well recognized rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all.... 30. It has also come on record that seven persons were standing close to the middle of the road. One would not expect such a group, at least, at that place of the road, that too in the wee hours of the morning, on such a wintry night. There is every possibility of the accused failing to see them on the road. Looking to all this, it can be safely assumed that he had no intention of causing bodily injuries to them but he had certainly knowledge that causing such injuries and fleeing away from the scene of accident, may ultimately result in their deaths. 31. It is also pertinent to mention that soon after hitting one of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, depend upon the particular facts established against the accused. 5. The prosecution in this case wanted to establish a motive for committing the offence against the sarpanch. It was sought to be established that there was enmity between the sarpanch and the accused and his relations on account of panchayat elections. Some evidence was led in order to prove that the accused and his relations were gunning against the sarpanch for some time after the latter's election as sarpanch. Even an anonymous letter was received by the sarpanch threatening his life which was handed over to the police by the sarpanch. Both the Sessions Judge as well as the High Court did not accept the evidence appertaining to motive. Mr. Mukherjee, therefore, rightly and very fairly did not address us with regard to that part of the case. Even so, the Learned Counsel submits that the act per se and the manner in which the vehicle was driven clearly brought the case under Section 304 Part II Indian Penal Code. It is further held in the same judgment at para 10 as under: 10. Section 304-A, by its own definition totally excludes the ingredients of Section 299 or Section 300, Indian Penal Code D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may foresee the possible or even probable consequences of his conduct and yet not desire them to occur; none the less if he persists on his course he knowingly runs the risk of bringing about the unwished result. To describe this state of mind the word reckless is the most appropriate. 36. For our own benefit it is appropriate to reproduce Section 304 of the Indian Penal Code, which reads thus: 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. 37. Critical and microscopic analysis thereof shows that once know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our of the accused. 45. In the light of the aforesaid discussion, the appeal is partly allowed. The judgment and order of conviction passed by Delhi High Court is partly set aside and the order of conviction of Trial Court is restored and upheld. Accused is held guilty under Section 304 Part II of the Indian Penal Code. Looking to the facts and circumstances of the same, we deem it appropriate to maintain the sentence awarded by the High Court, which he has already undergone. However, we make it clear that 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. 46. Appeal stands allowed to the aforesaid extent. Accused has already undergone the sentence awarded to him by the High Court. Thus, he need not undergo any further sentence. 47. Delay condoned. 48. Leave granted. 49. 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, ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and awarded the sentence of five years rigorous imprisonment. 54. 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(II) to Section 304A of the Indian Penal Code 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(II) to Section 304A of the Indian Penal Code considering the seriousness of charges proved and the gravity of the offence. 55. 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(II) to 304A of the Indian Penal Code, raising various grounds. Learned ASG submitted that the High Court had misdirected itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution witnesses turned hostile and the incidents which led to the judgment of this Court in R.K. Anand v. Registrar, Delhi High Court (2009) 8 SCC 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 hostile 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. 57. 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(II) of the Indian Penal Code or whether the conviction or sentence awarded by the High Court under Section 304A of the Indian Penal Code would be inadequate punishment, so far as the facts and circumstances of this case are concerned. Shri Raval submitted that the accused deserves harshe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 60. 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. 61. 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 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hmalani 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 Indian Penal Code 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 M.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), Gumbley 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). 65. 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 PW 10 - Dr. T. Milo and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts and circumstances of the case according to the trial court, as already indicated, would attract conviction under Section 304(II) of the Indian Penal Code but the High Court converted the same to Section 304A of the Indian Penal Code, 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. 69. The incident had occurred on 10.01.1999 and charge-sheet 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 als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 71. 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 Appellant turned hostile to accept occurrence of the said horrifying accident while driving BMW car bearing registration No. M-312-LYP. Certainly, a lot of time could have been saved had the accused been honest from da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 74. 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: xxx xxx (4) If a person, required by a police officer under Sub-section (1) or Sub-section (2) to provide a specimen of breath for a breath test, refuses or fails to do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as PW 16/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. 75. Further, the accused was also examined on the morning of 10.01.1999 by Dr. T. Milo - PW 10, Senior Resident, Department of Forensic Medicine, AIIMS, New Delhi and reported as follows: On examination, he was conscious, oriented, alert and co-operative. Eyes were congested, pupils were bilaterally dilated. The speech was coherent and gait unsteady. Smell of alcohol was present. 76. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 80. 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. 81. Even going by the evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, auto-rickshaws, 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shment 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 accused 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iting 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 a large extent, be properly attended to and, in that process, human lives could be saved. Hostile Witnesses 87. 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 adve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 of the Indian Penal Code imposes punishment for giving false evidence but is seldom invoked. Section 304(II) or Section 304A of the IPC 90. We may in the above background examine whether the offence falls under Section 304(II) of the Indian Penal Code or Section 304A of the Indian Penal Code 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(II) of the Indian Penal Code. 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(II) of the Indian Penal Code. 91. Shri Ram Jethmalani, on the other hand, submitted that Section 304(II), will never apply in a case of this nature, especially in the absence of any premeditation. Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 *** (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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 negligent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 defined in Section 299. If the answer to this question is prima facie found in the affirmative, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt has committed an error in converting the offence to Section 304A of the Indian Penal Code. 101. We may now examine the mitigating and aggravating circumstances and decide as to whether the punishment awarded by the High Court is commensurate with the gravity of the offence. 102. Mitigating circumstances suggested by the defence counsel are as follows: (i) The accused was only 21 years on the date of the accident, later married and has a daughter; (ii) Prolonged trial, judicial unfairness caused prejudice; (iii) The accused has undergone sentence of two years awarded by the High Court and, during that period, his conduct and behavior in the jail was appreciated; (iv) Accident occurred on a foggy day in the early hours of morning with poor visibility; (v) The accused had no previous criminal record nor has he been involved in any criminal case subsequently; (vi) The accused and the family members contributed and paid a compensation of 65 lacs, in total, in the year 1999 to the families of the victims; (vii) The accused had neither the intention nor knowledge of the ultimate consequences of his action and that he was holding a driving licence fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. 106. The imposition of sentence without considering its effect on the social order in many cases is in reality a futile exercise. In our view, 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. 107. The High Court, in our view, has committed an error in converting the convicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of conviction passed by Delhi High Court under Section 304A of the Indian Penal Code (Indian Penal Code) is set aside and the order of conviction of Trial Court under Part II of the Indian Penal Code is restored and upheld. However, we deem it appropriate to maintain the sentence awarded by the High Court, which the accused has already undergone. 113. In addition, the accused is put to the following terms: (1) Accused has to pay an amount of ₹ 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. (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. The Appeal is accordingly allowed in terms of the judgments and this common order. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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