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Judgment:
CRIMINAL APPEAL NO. 1530 OF 2007 (Arising out of S.L.P (Crl.) No.4805 of
2006)
Dr. Arijit Pasayat, J.- Leave granted
Challenge in this appeal is to the
order passed by a learned Single Judge of the Madhya Pradesh High Court
dismissing the criminal revision petition filed by the appellant.
Background facts in a nutshell
are as follows:
On 29.8.2004 bus bearing no. MPO 10588 was going from Ahrauli towards
Kailaras. While it was near a railway crossing, an accident took place.
A train hit the bus at the railway crossing. In the accident the bus
which was being driven by the appellant was badly damaged and as a
result of the accident several passengers got injured and two persons
namely Bhagoli @ Bhagwati and Ankush died. First information report was
lodged by Brijmohan Sharma, Constable. After completion of investigation
charge sheet was filed. Charges were framed in relation to the offences
punishable under Section 302 and alternatively under Section 304, 325
and 323 of the Indian Penal Code, 1860 (in short the 'IPC').
Questioning correctness of the
charges framed, the revision petition was filed. It was the stand of the
appellant that Section 302 IPC has no application to the facts of the
case. The High Court did not accept the plea. It found no substance in
the stand taken by the appellant that he had no intention to kill the
passengers. High Court was of the view that on the basis of material
available, charges were framed and the intention of the appellant has
been gathered when the evidence is adduced.
4. Learned counsel for the appellant
submitted that the accident took place near the railway crossing which
was un-manned. The materials on record show that the engine of the train
hit rear portion of the bus. Ultimately it may have been an error of
judgment on the part of the appellant and the fact that the engine hit
rear portion shows that there was no apparent negligence on the part of
the appellant. Therefore, Section 302 has no application and at the most
it may be Section 304-A IPC.
5. In response, learned counsel for
the respondent submitted that the fact that the passengers were asking
the appellant not to cross the railway line shows that there was
negligence and appellant was acting in a rash and negligent manner
without proper care and caution.
6. Section 304-A IPC applies to
cases where there is no intention to cause death and no knowledge that
the act done, in all probabilities, will cause death. This provision is
directed at offences outside the range of Sections 299 and 300 IPC.
Section 304-A 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 304-A.
7. Section 304-A 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 under Section 299 or
murder under Section 300. If a person willfully drives a motor vehicle
into the midst of a crowd and thereby causes death to some person, it
will not be a case of mere rash and negligent driving and the act will
amount to culpable homicide. Doing an act with the intent to kill a
person or knowledge that doing an act was likely to cause a person's
death is culpable homicide. When the intent or knowledge is the direct
motivating force of the act, Section 304-A has to make room for the
graver and more serious charge of culpable homicide. The provision of
this section is not limited to rash or negligent driving. Any rash or
negligent act whereby death of any person is caused becomes punishable.
Two elements either of which or both of which may be proved to establish
the guilt of an accused are rashness/negligence, a person may cause
death by a rash or negligent act which may have nothing to do with
driving at all. Negligence and rashness to be punishable in terms of
Section 304-A must be attributable to a state of mind wherein the
criminality arises because of no error in judgment but of a deliberation
in the mind risking the crime as well as the life of the person who may
lose his life as a result of the crime. Section 304-A discloses that
criminality may be that apart from any mens rea, there may be no motive
or intention still a person may venture or practice such rashness or
negligence which may cause the death of other. The death so caused is
not the determining factor.
8. What constitutes negligence has
been analysed in Halsbury's Laws of England (4th Edition) Volume 34
paragraph 1 (para 3) as follows:
"Negligence is a specific tort and
in any given circumstances is the failure to exercise that care which
the circumstances demand. What amounts to negligence depends on the
facts of each particular case. It may consist in omitting to do
something which ought to be done or in doing something which ought to be
done either in a different manner or not at all. Where there is no duty
to exercise care, negligence in the popular sense has no legal
consequence, where there is a duty to exercise care, reasonable care
must be taken to avoid acts or omissions which can be reasonably
foreseen to be likely to cause physical injury to persons or property.
The degree of care required in the particular case depends on the
surrounding circumstances, and may vary according to the amount of the
risk to be encountered and to the magnitude of the prospective injury.
The duty of care is owed only to those persons who are in the area of
foreseeable danger, the fact that the act of the defendant violated his
duty of care to a third person does not enable the plaintiff who is also
injured by the same act to claim unless he is also within the area of
foreseeable danger. The same act or omission may accordingly in some
circumstances involve liability as being negligent although in other
circumstances it will not do so. The material considerations are the
absence of care which is on the part of the defendant owed to the
plaintiff in the circumstances of the case and damage suffered by the
plaintiff, together with a demonstrable relation of cause and effect
between the two".
9. In this context the following
passage from Kenny's Outlines of Criminal Law, 19th Edition (1966) at
page 38 may be usefully noted :
"Yet a man may bring about an event
without having adverted to it at all, he may not have foreseen that his
actions would have this consequence and it will come to him as a
surprise. The event may be harmless or harmful, if harmful, the question
rises whether there is legal liability for it. In tort, (at common law)
this is decided by considering whether or not a reasonable man in the
same circumstances would have realised the prospect of harm and would
have stopped or changed his course so as to avoid it. If a reasonable
man would not, then there is no liability and the harm must lie where it
falls. But if the reasonable man would have avoided the harm then there
is liability and the perpetrator of the harm is said to be guilty of
negligence. The word 'negligence' denotes, and should be used only to
denote, such blameworthy inadvertence, and the man who through his
negligence has brought harm upon another is under a legal obligation to
make reparation for it to the victim of the injury who may sue him in
tort for damages. But it should now be recognized that at common law
there is no criminal liability for harm thus caused by inadvertence.
This has been laid down authoritatively for manslaughter again and
again. There are only two states of mind which constitute mens rea and
they are intention and recklessness. The difference between recklessness
and negligence is the difference between advertence and inadvertence
they are opposed and it is a logical fallacy to suggest that
recklessness is a degree of negligence The common habit of lawyers to
qualify the word "negligence" with some moral epithet such as wicked'
`gross' or `culpable' has been most unfortunate since it has inevitably
led to great confusion of thought and of principle. It is equally
misleading to speak of criminal negligence since this is merely to use
an expression in order to explain itself."
10. "Negligence", says the
Restatement of the law of Torts published by the American Law Institute
(1934) Vol. I. Section 28 "is conduct which falls below the standard
established for the protection of others against unreasonable risk of
harm". It is stated in Law of Torts by Fleming at page 124 (Australian
Publication 1957) that this standard of conduct is ordinarily measured
by what the reasonable man of ordinary prudence would do under the
circumstances. In Director of Public Prosecutions v. Camplin
(1978) 2 All ER 168 it was observed by Lord Diplock that "the reasonable
man" was comparatively late arrival in the laws of provocation. As the
law of negligence emerged in the first half of the 19th century it
became the anthropomorphic embodiment of the standard of care required
by law. In order to objectify the law's abstractions like "care"
"reasonableness" or "foreseeability" the man of ordinary prudence was
invented as a model of the standard of conduct to which all men are
required to conform.
11. In Syed Akbar v. State of
Kamataka, (1980) 1 SCC 30, it was held that "where negligence is an
essential ingredient of the offence, the negligence to be established by
the prosecution must be culpable or gross and not the negligence merely
based upon an error of judgment. As pointed out by Lord Atkin in
Andrews v. Director of Public Prosecutions (1937) (2) All ER 552)
simple lack of care such as will constitute civil liability, is not
enough; for liability under the criminal law a very high degree of
negligence is required to be proved. Probably, of all the epithets that
can be applied 'reckless' most nearly covers the case. "
12. According to the dictionary
meaning `reckless' means `careless', `regardless' or heedless of the
possible harmful consequences of one's acts'. It presupposes that if
thought was given to the matter by the doer before the act was done, it
would have been apparent to him that there was a real risk of its having
the relevant harmful consequences; but, granted this, recklessness
covers a whole range of states of mind from failing to give any thought
at all to whether or not there is any risk of those harmful
consequences, to recognizing the existence of the risk and nevertheless
deciding to ignore it. In R. v. Briggs (1977) 1 All ER 475 it was
observed that a man is reckless in the sense required when he carries
out a deliberate act knowing that there is some risk of damage resulting
from the act but nevertheless continues in the performance of that act.
13. In R. v. Caldwell (1981)
1 All ER 961, it was observed that:- "Nevertheless, to decide
whether someone has been `reckless', whether harmful consequences of a
particular kind will result from his act, as distinguished from his
actually intending such harmful consequences to follow, does call for
some consideration of how the mind of the ordinary prudent individual
would have reacted to a similar situation. If there were nothing in the
circumstances that ought to have drawn the attention of an ordinary
prudent individual to the possibility of that kind of harmful
consequence, the accused would not be described as `reckless' in the
natural meaning of that word for failing to address his mind to the
possibility; nor, if the risk of the harmful consequences was so slight
that the ordinary prudent individual on due consideration of the risk
would not he deterred from treating it as negligible, could the accused
be described as reckless in its ordinary sense, if, having considered
the risk, he decided to ignore it. (In this connection the gravity of
the possible harmful consequences would be an important factor. To
endanger life must be one of the most grave). So, to this extent, even
if one ascribes to 'reckless' only the restricted meaning adopted by the
Court of Appeal in Stephenson and Briggs, of foreseeing that a
particular kind of harm might happen and yet going on to take the risk
of it, it involves a test that would be described in part as 'objective'
in current legal jargon. Questions of criminal liability are seldom
solved by simply asking whether the test is subjective or objective."
14. The decision of R. v Caldwell
(Supra) has been cited with approval in R v. Lawrence (1981) 1 All ER
974 and it was observed that:
"--- Recklessness on the part of the
doer of an act does presuppose that there is something in the
circumstances that would have drawn the attention of an ordinary prudent
individual to the possibility that his act was capable of causing the
kind of serious harmful consequences that the section which creates the
offence was intended to prevent, and that the risk of those harmful
consequences occurring was not so slight that an ordinary prudent
individual would feel justified in treating them as negligible. It is
only when this is so that the doer of the act is acting `recklessly' if,
before doing the act, he either fails to give any thought to the
possibility of there being any such risk or, having recognized that
there was such risk, he nevertheless goes on to do it".
14. Normally, as rightly observed by
the High Court charges can be altered at any stage subsequent to the
framing of charges. But the case at hand is one where prima facie
Section 302 IPC has no application.
15. Accordingly, the appeal is
allowed. The charges stand altered to Section 304-A IPC along with
Sections 279 and 337 IPC.
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