Useful judgment on ipc 279,337, 338, 304 a short notes

A P RANDNHIR
(B.Com, LLB, LLM, DLP )
MATERIAL ON INDIAN PENAL CODE
SECTION 279,304A,337,338,339
MOTER VEHICAL ACT- 177,184
COMPILATION OF SC
&
HIGH COURT JUDGMENT
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1. AIR 1954 ALLAHABAD 186 (Vol. 41, C.N. 103) "Chamman Lal v. State"
ALLAHABAD HIGH COURT
Coram : 1 MUKERJI, J. ( Single Bench )
Chamman Lal, Convict-Applicant v. The State.
Criminal Revn. No. 344 of 1952, D/- 8 -10 -1953, against order of Addl. S.J., Kanpur, D/- 20 -12 -1951.
(A) Penal Code (45 of 1860), S.304A - NEGLIGENCE - Rash or negligent driving.
Before a conviction can be had under S. 304A, Penal Code a very high degree of negligence must be
found, negligence which must amount to recklessness or utter indifference to consequence's and not
merely negligence of tort. (Para 8)
Rashness and negligence are not the same things. Mere negligence cannot be construed to mean
rashness. There are degrees of negligence and rashness and in order to amount to criminal rashness or
criminal negligence one must find that the rashness has been of such a degree as to amount to taking
hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned thereby.
The criminality lies in running the risk or doing such an act with recklessness and indifference to the
consequences. Criminal negligence is gross and culpable neglect; that is to say, a failure to exercise that
care and failure to take that precaution which, having regard to the circumstances, it was the imperative
duty of the individual to take; culpable rashness is acting with consciousness that mischievous
consequences are likely to follow although the individual hopes, even though he hopes sincerely, that such
consequences may not fellow. The criminality lies in not taking the precautions to prevent the happening of
the consequences in the hope that they may not happen. The law does not permit a man to be uncauticus
on a hope however earnest or honest that hope may be. AIR 1953 All 72 and 1937-2 All ER 552, Rel. on.
(Para 6)
Anno : Penal Code, S. 304A, N. 5.
(B) Penal Code (45 of 1860), S.304A - NEGLIGENCE - EVIDENCE - Evidence and proof.
Evidence Act (1 of 1872), S.114.
In a prosecution under S. 304A, Penal Code for rash and negligent driving the Court should not take into
account the speed which the accused developed after the accident to judge the speed at which he was
driving the truck prior to the accident. It is well known that it is a common human failing, however
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reprehensible it may be, for a man to attempt to run away if he has committed an accident. (Para 10)
Anno : Evidence Act, S. 114, N. 18.
2. AIR 1953 ALLAHABAD 72 "A. W. Lazarus v. The State"
LUCKNOW BENCH
Coram : 2 MISRA AND BEG, JJ. ( Division Bench )
A. W. Lazarus - Appellant v. The State.
Criminal Appeal No. 69 of 1951, D/- 14 -2 -1952.
Penal Code (45 of 1860), S.304A - NEGLIGENCE - Criminal rashness - Tests - To judge criminality of
accused one should put oneself in situation in which accused found himself and see what would be
his reaction - Driver of goods train not seeing raised signal which was meant for him due to visual
obstruction caused by tree and other railway construction but wrongly thinking that the lowered
signal was meant for him- Train carried to a line ending in dead end-Accident causing death of
persons - Accused held not guilty under S.304A.
4. We have carefully and anxiously examined the case and in our estimation the facts narrated above do
not fix any criminal liability on the accused. The unfortunate incident, it appears to us, was brought about by
an extraordinary combination of events, the existence of which the accused could scarcely have divined.
He reached the distant signal at 8.1 A.M. and he found the three signals, namely the outer signal, the home
signal and the advance starter signal, down. He also found that another starter signal in the direction of
Balamau was depressed. There is nothing to show that he was aware of the fact that the parcel train had
just left Hardoi that the starter which was depressed was intended to guide that train and the pointsman
had not yet had the time to put it 'off.' His own train was scheduled to run through Hardoi. The signal of the
platform into which Lazarus was to come was not visible and we apprehend that ordinarily a prudent driver
in these circumstances could scarcely have sensed danger. It is easy after the event to analyse the
happenings and to find out possible methods or devices which if adopted may have averted the accident. In
order to judge of the criminality of the accused it is necessary, however, to put oneself in his position and to
see what in the circumstances which were before him would be the normal reaction to these signals of a
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man situated as he was. Criminal rashness, as laid down by Straight, J., in Empress of India v. Idu Beg, 3
ALL 776 and by a Division Bench of the Calcutta High Court in H.W. Smith v. Emperor, 53 Cal 333, means
hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further
knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would
probably be caused. The criminality in such a case lies in running the risk of doing such an act with
recklessness or indifference as to the consequence. Criminal negligence under S.304A is gross and
culpable neglect or failure to exercise that reasonable and proper care and to take precaution to guard
against injury either to the public generally or to an individual in particular, which, having regard to all the
circumstances attending the charge, it was the imperative duty of the accused person to have adopted. As
stated above the accused exercised the ordinary caution which was demanded of him inasmuch as he
slowed down his train on entering the yard. It is difficult to saddle him with the knowledge that his train was
to be received on platform No.5 or failure to notice that a further signal which was intended for line No.5 but
which was obstructed from view was not lowered. It is impossible, in our judgment, to insist that Lazarus
should have discerned that the down advance starter and the more proximate starter were intended for the
parcel regain and not for him. His action was unfortunate but in our opinion it was by no means grossly
negligent.
3. AIR 1954 ALLAHABAD 186 (Vol. 41, C.N. 103) "Chamman Lal v. State"
Coram : 1 MUKERJI, J. ( Single Bench )
Chamman Lal, Convict-Applicant v. The State.
Criminal Revn. No. 344 of 1952, D/- 8 -10 -1953, against order of Addl. S.J., Kanpur, D/- 20 -12 -1951.
(A) Penal Code (45 of 1860), S.304A - NEGLIGENCE - Rash or negligent driving. Before a conviction
can be had under S. 304A, Penal Code a very high degree of negligence must be found, negligence
which must amount to recklessness or utter indifference to consequence's and not merely
negligence of tort. (Para 8)
Rashness and negligence are not the same things. Mere negligence cannot be construed to mean
rashness. There are degrees of negligence and rashness and in order to amount to criminal
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rashness or criminal negligence one must find that the rashness has been of such a degree as to
amount to taking hazard knowing that the hazard was of such a degree that injury was most likely
to be occasioned thereby. The criminality lies in running the risk or doing such an act with
recklessness and indifference to the consequences. Criminal negligence is gross and culpable
neglect; that is to say, a failure to exercise that care and failure to take that precaution which,
having regard to the circumstances, it was the imperative duty of the individual to take; culpable
rashness is acting with consciousness that mischievous consequences are likely to follow
although the individual hopes, even though he hopes sincerely, that such consequences may not
fellow. The criminality lies in not taking the precautions to prevent the happening of the
consequences in the hope that they may not happen. The law does not permit a man to be
uncauticus on a hope however earnest or honest that hope may be. AIR 1953 All 72 and 1937-2 All
ER 552, Rel. on. (Para 6)
Anno : Penal Code, S. 304A, N. 5.
7. I may here refer to a very instructive judgment of the House of Lords in - 'Andrews v. Director of Public
Prosecutions', 1937-2 All ER 552 (D). In this case Lord Atkin reviewed several of the earlier cases and
delivered the leading opinion of the House. Lord Atkin pointed cut that the connotations of 'mens rea' are
not helpful in distinguishing between degrees of negligence, nor do the ideas of crimes and punishments in
themselves carry a jury much further in deciding whether, in a particular case, the degree of negligence
shown is a crime and deserves punishment. According to Lord Atkin, "the principle to be observed is that
cases of manslaughter in driving motor cars are but instances of a general rule applicable to all charges of
homicide by negligence. Simple lack of care such as will constitute civil liability is not enough. For purposes
of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be
proved before the felony is established." Lord Atkin observed that the most appropriate epithet which can
be applied to such cases is "reckless". He further pointed out that "it is difficult to visualise a case of death
caused by "reckless" driving, in the connotation of that term in ordinary speech, which would not justify a
conviction for manslaughter, but it is probably not all-embracing, for "reckless" suggests an indifference to
risk, whereas the accused may have appreciated the risk, and intended to avoid it, and yet shown in the
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means adopted to avoid the risk such a high degree of negligence as would justify a conviction."
In an earlier case Lord Ellenborough had pointed out that to substantiate the charge of manslaughter the
prisoner must be found to have been guilty of criminal misconduct arising either from the grossest
ignorance or the most criminal inattention. Lord Atkin explained this observation of Lord Ellenborough in
these words : "The word "criminal" in any attempt to define a crime is perhaps not the most helpful, but it is
plain that Lord Ellenborough meant to indicate to the jury a high degree of negligence." Attention was also
drawn by Lord Atkin to a passage in a considered judgment of Lord Hewart, Lord Chief Justice the passage
to which attention was drawn was this : "In a criminal Court, on the contrary, the amount and degree of
negligence are the determining questions. There must be 'mens rea'."
But, as was pointed out by Lord Atkin, the connotation of mens rea do not always prove helpful in
determining the guilt of an accused in a particular case.
4. AIR 1953 HYDERABAD 123 (Vol. 40, C.N. 47) "S. V. Subbarao v. State"
HYDERABAD HIGH COURT
Coram : 1 JAGANMOHAN REDDY, J. ( Single Bench )
S. V. Subbarao, Appellant v. State.
Revn. No.156/6, 61/6 of 1952, D/- 24 -10 -1952.
Penal Code (45 of 1860), S.304A - NEGLIGENCE - Rash or negligent driving - Test - Cyclist in trying
to overtake rikshaw dashing against mudguard of bus coming from opposite direction - Cyclist
receiving injuries resulting in death - Bus-driver held was not guilty u/S.304A.
The question whether the accused's conduct amounted to culpable rashness or negligence depends
directly on the question as to what is the amount of care and circumspection which a prudent and
reasonable man would consider it to be sufficient considering all the circumstances of the case. In such
cases it is necessary to avoid being influenced by the prejudice arising out of the loss of a life which is so
dominant a factor in accident cases : AIR 1944 Sind 124; AIR 1950 All 300 and AIR 1926 Cal 300, Rel. on.
(Paras 2 and 5)
5. AIR 1954 MADHYA BHARAT 41 (Vol. 41, C.N. 27) "Gulamsaeed v. State"
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MADHYA BHARAT HIGH COURT
(INDORE BENCH)
Coram : 1 NEVASKAR, J. ( Single Bench )
Gulamsaeed Gulam Amir, Applicant v. The State.
Criminal Revn. No. 75 of 1952, D/- 3 -9 -1952.
Penal Code (45 of 1860), S.304A - NEGLIGENCE - Negligence - Culpable rashness.
Negligence is the omission to do something which a reasonable man, guided upon those
circumstances which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do. In order to establish the criminal liability
the fact must be such that the negligence of the accused shows such disregard or lack to the safety of the
other. While culpable rashness is acting with consciousness that the mischievous and illegal consequences
may follow, but with the hope that they will not and often with the belief that the actor has taken sufficient
precautions to prevent their happening. (Para 12)
Thus where the driver of a car does not stop the car then and there after a girl has crossed it but proceeds
further, no inference of gross negligence and recklessness can be drawn. (Para 16)
Anno : Penal Code, S. 304A N. 1 and 5.
6. AIR 2009 SUPREME COURT 1621 "State of Karnataka v. Muralidhar"
(From : Karnataka)*
Coram : 2 Dr. A. PASAYAT AND ASOK KUMAR GANGULY, JJ.
State of Karnataka v. Muralidhar.
(A) Penal Code (45 of 1860), S.304A - NEGLIGENCE - Causing death by negligence - Provision does not
apply to cases where death has been voluntarily caused. (Para 6)
(B) Penal Code (45 of 1860), S.304A, S.299, S.300 - NEGLIGENCE - CULPABLE HOMICIDE - MURDER -
Causing death by negligence - Provision is directed at offences outside range of S.299 and S.300. (Para
7)
(C) Penal Code (45 of 1860), S.304A - NEGLIGENCE - WORDS AND PHRASES - Causing death by
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negligence - Negligence or rashness - Meaning of.
Words and Phrases - Negligence - Meaning. (Para 6)
(D) Penal Code (45 of 1860), S.304A, S.338, S.279 - NEGLIGENCE - GRIEVOUS HURT - JUDGMENT -
Vehicular accidents - Death resulting from rash and negligent act - Conviction for - Custodial sentence or
fine - Undue sympathy to impose inadequate or meager sentence would do more harm to justice system.
Criminal P.C. (2 of 1974), S.354(3). (Paras 21, 24)
(E) Penal Code (45 of 1860), S.304A, S.338, S.279 - NEGLIGENCE - GRIEVOUS HURT - Causing death
by negligence - Rash and negligent driving resulting in death of 16 years' old boy - Conviction - Custodial
sentence - High Court without considering relevant aspects and indicating any reason, waived custodial
sentence and imposed only fine - Impugned order imposing fine is liable to be set aside.
Cri. R.P. No. 64 of 1999, D/-21-08-2000 (Kar.), Reversed. (Para 26)
7. AIR 2008 SUPREME COURT 3074 "Manish Jalan v. State of Karnataka"
(From : Karnataka)
Coram : 2 C. K. THAKKER AND D. K. JAIN, JJ.
Criminal Appeal No. 1066 of 2008 (arising out of SLP (Cri.) No. 1080 of 2007), D/- 11 -7 -2008.
Manish Jalan v. State of Karnataka.
(A) Criminal P.C. (2 of 1974), S.320(9) - Penal Code (45 of 1860), S.279, S.304A - COMPOUNDING OF
OFFENCE - NEGLIGENCE - Compounding of offences - Only such offences as are included in two
tables, provided u/S.320 can be compounded - Admittedly, offences punishable u/S.279 and
u/S.304A, IPC do not figure in said tables - They are, therefore, not compoundable. (Para 6)
(B) Penal Code (45 of 1860), S.279, S.304A - Criminal P.C. (2 of 1974), S.357 - NEGLIGENCE -
JUDGMENT - SENTENCE REDUCTION - Rash driving - Death by negligence - Sentence - Tanker driven
in rash and negligent manner, causing death of scooterist - It was case of a rash and negligent act
simpliciter - Not of driving in an inebriated condition - Sentence of imprisonment therefore reduced to period
already undergone - Amount of Rs. 1,00,000/- awarded to mother of deceased by way of compensation.
(Paras 15, 16, 17)
(C) Criminal P.C. (2 of 1974), S.357 - JUDGMENT - Compensation - Quantum of - Determination -
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Nature of crime, injury suffered and capacity of convict to pay compensation etc. have to be taken
into consideration.
AIR 1988 SC 2127; AIR 1978 SC 1525; 2007 AIR SCW 2425, Rel. on. (Para 13)
8. 2011 CRI. L. J. 1989 "Binoda Bihari Sharma v. State of Orissa"
ORISSA HIGH COURT
Coram : 1 C. R. DASH, J. ( Single Bench )
Criminal Revision No. 416 of 2000, D/- 16 -7 -2010.
Binoda Bihari Sharma v. State of Orissa.
Penal Code (45 of 1860), S.304A, S.279 - DOWRY DEATH - NEGLIGENCE - PLEA - Causing death by
rash driving - Allegation that accused caused serious injuries to boy of four years old by dashing against
him scooter he was driving in a rash and negligent manner - Plea by accused that accident occurred
due to bursting of tyre of scooter - Held, bursting of tyre may happen only when tube and tyre have
already spent their lives or in event of poor maintenance of same - Poor maintenance itself is a
negligent act - Conviction of accused, proper - Considering fact that occurrence took place 20 years ago
and no purpose will be served by sending the accused to prison after 20 years sentence of a fine of Rs.
1,000/- for the offence under Section 279 I. P. C. and fine of Rs. 3,000/- for the offence under Section 304-A
I. P. C. imposed.
Bursting of tyre may happen only when the tube and tyre have already spent their lives or in the
event of poor maintenance of the same. Mechanical failure of a vehicle contributing to cause of an
accident is also a factor coming under "poor maintenance". Care and maintenance of the vehicle as
a fact is within the special knowledge of the driver of the vehicle. Poor maintenance of the vehicle
is itself a negligent act as it speaks of "absence of care" so far as the vehicle is concerned.
Therefore driving of such a vehicle in public road in speed oblivious of the defects, mechanical or otherwise
resulted from poor maintenance is no doubt a negligent act. Mechanical failure or any other defect of a
vehicle contributing to the cause of accident cannot therefore be considered in favour of the accused in
such a case in absence of proof of course by preponderance of probabilities to the effect that the vehicle
has had been maintained with proper care. (Paras 8, 9, 11)
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9. 2011 CRI. L. J. 3004 "Kewal Singh v. State of Punjab"
PUNJAB & HARYANA HIGH COURT
Coram : 1 GURDEV SINGH, J. ( Single Bench )
Crl. Rev. No. 337 of 2006, D/- 23 -3 -2011.
Kewal Singh v. State of Punjab.
Penal Code (45 of 1860), S.279, S.337, S.304A - NEGLIGENCE - HURT - PLEA - IDENTIFICATION
PARADE - Rash driving - Causing hurt - Causing death by negligence - Proof - Petitioner-accused while
driving canter alleged to have dashed against victim girls causing death of one and injuries to another -
Plea by accused that in absence of TI parade, identification of accused for first time in Court cannot
be relied upon - Not tenable - TI parade was meant only for corroborating evidence and in exceptional
circumstances identification in Court can form basis of conviction - Since complainant had categorically
stated that accused after accident alighted from canter, disclosed his name, parentage and address and
thereafter escaped - Nothing to disbelieve testimony of complainant - Hence, conviction of accused was
proper. (Paras 11, 13)
10. 2010 CRI. L. J. 3376 "State of Karnataka v. Kumayian"
KARNATAKA HIGH COURT
Coram : 1 K. N. KESHAVANARAYANA, J. ( Single Bench )
Cri. Appeal No.1309 of 2007, D/- 26 -3 -2010.
State of Karnataka v. Kumayian.
(A) Penal Code (45 of 1860), S.279, S.338, S.304A - NEGLIGENCE - GRIEVOUS HURT - WITNESS -
EVIDENCE - Rash and negligent driving - Collision between motor cycle and bus - Pillion rider of motor
cycle who was injured in accident is best witness to speak as to manner in which accident took place - Not
disputed that accused was driver of bus - Fact that injured pillion rider of motor cycle did not identify bus
driver or could not say the speed with which bus was driven - No ground to reject his evidence. (Para
14)
(B) Penal Code (45 of 1860), S.299, S.335, S.304A - CULPABLE HOMICIDE - GRIEVOUS HURT -
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NEGLIGENCE - WITNESS - Rash and negligent driving - Evidence of eye-witness to accident - Credibility -
Eye-witnesses clearly stated that on date of accident they were present at tea stall when they saw bus
trying to overtake bullock cart dashing against motor cycle from opposite direction - Their presence at place
of accident not disputed - Material suggestion put to him in cross-examination was since bullock-cart was
going ahead of bus he could not see bus - This suggestion is incongruous, as bullock-cart cannot cover
bus - Their evidence cannot be disbelieved on ground that while drinking tea near tea shall they could not
concentrate as to what happens on road and that could not see bus as a bullock-cart was proceeding
ahead of bus. (Paras 13, 14)
(C) Penal Code (45 of 1860), S.279, S.338, S.304A - NEGLIGENCE - GRIEVOUS HURT - Rash and
negligent driving - Accused driver of bus proceeded to overtake bullock-cart - Unmindful of fact that a motor
cycle was coming from opposite direction on correct side of road, accused proceeded further and dashed
against motor cycle - Accused bus driver did not take such care and caution which a prudent and
reasonable man was required to take in circumstance of cases - No duty is cast on rider of motorcycle to
stop vehicle as he was moving on correct side of road and was not overtaking any vehicle - Further bus
after dragging motor cycle to a distance of about 20 feet stopped on foot path situated on western side -
Shows that accused bus driver drove bus in a rash and negligent manner and vehicle was not under his
control - He was not in a position to bring bus to halt and in absence of any tyre mark on road, it appears
accused also did not make any effort to apply break to stop bus - Clearly established accused drove bus in
a rash and negligent manner - Acquittal of bus driver, set aside. (Paras 18, 19)
(D) Penal Code (45 of 1860), S.304A - NEGLIGENCE - SENTENCE IMPOSITION - Sentence -
Accused bus driver aged 56-57 years at fag end of his service - Taking into consideration, facts and
circumstances and manner in which accident occurred, gravity of offence for which accused has
been convicted - No leniency can be shown. (Paras 21, 24)
11. 2009 CRI. L. J. 4595 "K. K. Mani v. State"
MADRAS HIGH COURT
Coram : 1 G. RAJASURIA, J. ( Single Bench )
Crl. R. C. No. 173 of 2006 and Crl. M. P. No. 944 of 2006, D/- 1 -7 -2009.
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K. K. Mani v. The State.
(A) Penal Code (45 of 1860), S.279 - NEGLIGENCE - Rash and negligent driving - Accused driving
bus and dashing cyclist from behind - Is guilty of rashness and negligence in driving bus.
It is a trite proposition of law that bigger the vehicle, bigger is the responsibility. Unarguably and
unassailably, indubitably and incontrovertibly, the offending bus was a big passenger vehicle and while
driving such a big vehicle along the public road and that too in an area, where there are educational
institutions, the accused driver should have been very careful. The very act of the accused in driving the
bus and dashing from behind the cyclist, would speak volumes about the rashness and negligence in
driving the vehicle. (Para 21)
Owing to the accused driver's rash and negligence and also carelessness, in driving the bus, he attempted
to overtake the lorry and thereafter, on seeing one other bus coming in the opposite direction swered the
bus towards the left and came in violent contact with the said cyclist and caused the accident. If this act of
the accused is not termed as "rash and negligent" then what else could be termed so. (Para 12)
(B) Criminal P.C. (2 of 1974), S.294(1) - DOCUMENTS - Marking document - Without any objection
from accused's side - Would not tantamount to admitting genuineness of document u/S.294(1).
(Para 27)
(C) Criminal P.C. (2 of 1974), S.294(1) - DOCUMENTS - POST-MORTEM - Marking document - Post-
mortem reports and other documents - Marking through Investigation Officer and not through
official/expert witnesses concerned - And not taking steps by prosecuting agency/investigating
agency to take alternative measures to prove such document - Condemned.
Whenever a post-mortem certificate or any other document is marked through the investigating officer,
reason should be elicited out from the investigating officer by the prosecution agency as to why those
documents are constrained to be marked through the Investigating Officer and not through the
official/expert witnesses concerned and the prosecuting agency and the investigating agency are duty
bound to see that alternative measures of proving the post-mortem reports and other documents are
resorted to. But, in this case, no such steps have been taken, which shows the sheer callousness on the
part of the prosecuting agency as well as the investigating agency in handling the matter and it required to
be condemned in unmistakable terms. Even while recording the S. 161 statement, the Investigating officer
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has not taken steps to elicit out from the Doctor, as to what type of treatment was given in this case and the
investigating
@page-CriLJ4596
agency had not taken steps to place before the Court as to what treatment was given to the injured ever
since he was admitted in the hospital till his death. Invariably in cases of deaths occurring after
considerable days from the date of occurrence, it should be explained by the prosecution that despite
proper treatment death occurred and then only the Court could be made to believe that the death was due
to the injury sustained at the time of occurrence only. (Para 28)
(D) Evidence Act (1 of 1872), S.3 - EVIDENCE - WITNESS - Examination of witness - Bus accident -
Ocular evidence is clear relating to rash and negligent act of accused in driving bus - There is no
suggestion from evidence of witnesses that accident occurred due to mechanical defect in bus - Non-
examination of Motor Vehicle Inspector in this case, therefore, not fatal to case of prosecution. (Para
29)
(E) Evidence Act (1 of 1872), S.45, S.3 - EVIDENCE - POST-MORTEM - Evidence of expert - Post-
mortem report - Marked without any objection from defence side - Doctor not examined before
Court - Nor his opinion proved according to law - Opinion of doctor would be inadmissible in
evidence - However, for purpose of understanding as to what are all injuries sustained by
deceased, the recording of injuries by Doctor in post-mortem certificate is admissible in evidence.
(Para 32)
(F) Penal Code (45 of 1860), S.304A, S.338, S.279 - NEGLIGENCE - Rash and negligent driving -
Accused, bus driver allegedly hit cyclist from behind - Death of cyclist after being treated in hospital -
Prosecution failed to produce medical records - Doctor who gave treatment to deceased was not examined
- Thus, prosecution failed to prove that despite proper treatment, injured died due to injuries sustained by
him in accident - Held, no offence u/S.304-A was made out - However, accused would be guilty of offence
u/S.338 and u/S.279 - In facts and circumstances only fine of Rs. 1000/-imposed on accused. (Paras
33, 34, 39)
12. 2008 CRI. L. J. 2418 "Digamber Baburao Ingavale v. State of Maharashtra"
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BOMBAY HIGH COURT
Coram : 1 D. G. KARNIK, J. ( Single Bench )
Cri. Revn. Appln. No. 209 of 2000, D/- 18 -2 -2008.
Digamber Baburao Ingavale v. State of Maharashtra.
Penal Code (45 of 1860), S.279, S.337 - NEGLIGENCE - HURT - WITNESS - EVIDENCE - MOTOR
VEHICLES - Negligent driving - Proof - Evidence of local witnesses - Need not be dismissed on
ground that local witnesses are interested witnesses - If accident occurs on public road and is
witnessed by one or more witnesses, eye witnesses are more likely to be residents of locality.
Evidence Act (1 of 1872), S.3.
Motor Vehicles Act (59 of 1988), S.184.
There is no rule of law nor of prudence that local witnesses should not be believed. If an accident
occurs on a public road in a village and is witnessed by one or more witnesses, the eye witnesses are more
likely to be the residents of the locality or the persons visiting that locality on business or some other
purpose. Merely because the persons are residents of the village or the locality where the accident
occurred, they cannot be called as interested witnesses. Moreso when on merits, nothing has been shown
why the witnesses should have been disbelieved. (Para 5)
13. 2008 CRI. L. J. 4175 "State of Himachal Pradesh v. Varinder Kumar"
HIMACHAL PRADESH HIGH COURT
Coram : 1 SANJAY KAROL, J. ( Single Bench )
Crl. Appeal No. 6 of 2001, D/- 28 -3 -2008.
State of H. P. v. Varinder Kumar.
9. In Rathnashalvan v. State of Karnataka, (2007) 3 Supreme Court Cases 474 and Prabhakaran v. State
of Kerala, AIR 2007 Supreme Court 2376, the Apex Court has considered what rashness and negligence
would mean in the context of criminal culpability :-
"5.............A negligent act is an act done without doing something which a reasonable man guided upon
those considerations which ordinarily regulate the conduct of human affairs would do or act which a
prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act
14

done precipitately. Negligence is the genes, of which rashness is the species. It has sometimes been
observed that in rashness the action is done precipitately that the mischievous or illegal consequences may
fall, but with a hope that they will not;...."
"6......... "Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its
reasonableness will always depend upon the circumstances of each case. Rashness means doing an act
with the consciousness of a risk that eivil consequences will follow but with the hope that it will not.
Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are
determining
@page-CriLJ4177
factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends
directly on the question as to what is the amount of care and circumspection which a prudent and
reasonable man would consider to be sufficient considering all the circumstances of the case. Criminal
rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wantion
and the further knowledge that it may cause injury but done without any intention to cause injury or
knowledge that it would probably be caused."
"7. As noted above, "Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it
is so and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act
with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the
gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard
against injury either to the public generally or to an individual in particular, which, having regard to all the
circumstances out of which the charge has arisen it was the imperative duty of the accused person to have
adopted."
(Emphasis supplied)
Now applying the aforesaid principles, the evidence needs to be examined.
principle of res ipsa loquitur 'the facts speak for themselves'
15

14. 2007 CRI. L. J. 871 "C. Abdulla v. State of Kerala"
KERALA HIGH COURT
Coram : 1 K. T. SANKARAN, J. ( Single Bench )
Cri. M. C. No. 808 of 2004(A), D/- 12 -9 -2006.
C. Abdulla s/o. C. H. Ahammed v. State of Kerala and Anr.
Criminal P.C. (2 of 1974), S.319 - APPEARANCE - NEGLIGENCE - PUBLIC NUISANCE - Arraying of
accused - Offence of rash and negligent driving and causing death by negligence - Driver of vehicle
arrayed as accused - Owner of vehicle specifically stated in his evidence that he was not driving
vehicle at time of accident - Arraying of owner as co-accused - Not proper - Case being of rash and
negligent driving, normally, there cannot be more than one accused.
Penal Code (45 of 1860), S.279, S.304A.
15. 2007 CRI. L. J. 4347 "State of H. P. v. Giridhari Lal"
Coram : 1 V. K. AHUJA, J. ( Single Bench )
Cri. Appeal No. 150 of 2000, D/- 16 -6 -2007.
State of H.P. v. Girdhari Lal.
(A) Penal Code (45 of 1860), S.304A, S.279 - NEGLIGENCE - PUBLIC SAFETY - APPEAL - PROBATION
OF OFFENDERS - Causing death by rash and negligent driving - Release of accused on probation -
Appeal against - Maintainability - Appeal to High Court by State Govt. against an order passed by trial
Magistrate releasing accused on probation - Is maintainable. Probation of Offenders Act (20 of 1958), S.4.
(Para 6)
(B) Penal Code (45 of 1860), S.304A, S.279 - NEGLIGENCE - PUBLIC SAFETY - PROBATION OF
OFFENDERS - Causing death by rash and negligent driving - Release of accused on probation -
Validity - Benefit cannot be accorded to person held guilty under S. 304-A - Release of accused on
probation by ignoring law laid down by Apex Court - in 2000 Cri LJ 2283 - Is improper - High court
however, restrained from imposing sentence as it will deprive accused challenging the findings
before Sessions Judge.
16

2000 Cri LJ 2283 (SC), Relied on.
Probation of Offenders Act (20 of 1958), S.4. (Paras 10, 11)
16. 2006 CRI. L. J. 4246 "Mahadev v. State of Madhya Pradesh"
MADHYA PRADESH HIGH COURT
(INDORE BENCH)
Coram : 1 S. C. VYAS, J. ( Single Bench )
Cri. Revn. No. 122 of 2000, D/- 16 -1 -2006.
Mahadev v. State of M.P.
Penal Code (45 of 1860), S.304A, S.338, S.279, S.80 - NEGLIGENCE - GRIEVOUS HURT - GENERAL
EXCEPTIONS - Causing death by negligence - Rash and negligent driving - Steering wheel of offending
vehicle was broken all of sudden which resulted into accident causing death of a person - Owner of vehicle
admitted that accused driver informed him about said fact immediately after accident - Mechanic stated
that it was not possible to control tractor with such steering wheel - No evidence produced to prove
that vehicle was driven rashly or negligently - Thus, it can be said that incident was merely an
accident - Conviction of accused, not proper. (Paras 7, 8, 9)
17. 2005 CRI. L. J. 2636 "Bagtawar Singh v. State of Rajasthan"
RAJASTHAN HIGH COURT
Coram : 1 N. N. MATHUR, J. ( Single Bench )
S. B. Crl. R. P. No. 488 of 2004, D/- 10 -8 -2004.
Bagtawar Singh, Petitioner v. State of Rajasthan, Respondent.
Penal Code (45 of 1860), S.279, S.304A - NEGLIGENCE - Rash and negligent driving - Impatient
passenger jumped out without waiting for bus to come to its complete halt - Passenger died on
spot - Does not amount to negligence by driver. (Para 4)
17

18. 2005 CRI. L. J. 2735 "Narender Singh v. State"
DELHI HIGH COURT
Coram : 1 Ms. MANJU GOEL, J. ( Single Bench )
Crl. Revn. Petn. No. 297 of 2004, D/- 17 -1 -2005.
Narender Singh, Petitioner v. State, Respondent.
(A) Penal Code (45 of 1860), S.279, S.304A - NEGLIGENCE - WITNESS - Rash and negligent driving -
Eye-witnesses - Veracity in testimony - Witness deposing that he saw bus coming from 10 ft. and during
this period he assesssed speed at 90 kmph - Not a serious discrepancy - What matters is not speed at 90
kmph but speed of bus was on higher side - Further witnesses deposing about incident after 2 years - Said
witness not faulting in testimony - And it is unlikely that he would forget such serious event. (Para 4, 6)
(B) Penal Code (45 of 1860), S.279, S.304A - NEGLIGENCE - Rash and negligent driving - Merely
because doctor conducting post-mortem, not examined - No ground to review conviction - Not a
case when deceased collapsed on account of any other reason. (Para 5)
(C) Penal Code (45 of 1860), S.279, S.304A - NEGLIGENCE - PROBATION OF OFFENDERS -
SENTENCE IMPOSITION - Sentence - Rash and negligent driving - Sentence - Driver-accused must
always keep in mind that if he is convicted for causing death due to rash driving, he cannot escape
conviction - And Courts will not deal leniently - Sentence - Not interfered with.
Probation of Offenders Act (20 of 1958), S.4. (Para 9)
19. 2005 CRI. L. J. 4712 "Babul Chakraborty v. State of Tripura"
GAUHATI HIGH COURT
(AGARTALA BENCH)
Coram : 1 T. VAIPHEI, J. ( Single Bench )
Cri. Revn. Petn. No. 15 of 1999, D/- 10 -8 -2005.
Babul Chakraborty v. State of Tripura.
Penal Code (45 of 1860), S.304A, S.279 - NEGLIGENCE - SENTENCE IMPOSITION - Causing death due
to negligence - Allegations against petitioner that due to his negligent driving of jeep in a public way one
18

woman died and other injured in accident - Injured passengers of jeep stated that in spite of their request
for slow driving driver continued to drive in high speed due to which accident caused - Guilt of petitioner
proved - Trial Court by observing that petitioner was a poor driver of young age and he have been swayed
by nature of offence and circumstances under which offence was committed awarded sentence lesser than
maximum punishments prescribed by law - Not proper. (Paras 8, 9, 10)
Cases Referred : Chronological Paras
1979 Cri LJ 1258 (Gauhati) 7
20. 2004 CRI. L. J. 3712 "State of Karnataka v. M. F. Kodliwad"
Coram : 1 N. S. VEERABHADRAIAH, J. ( Single Bench )
State of Karnataka, Appellant v. Madivalappa Fakirappa Kodliwad, Respondent.
Penal Code (45 of 1860), S.279, S.337, S.304, S.304A - Motor Vehicles Act (59 of 1988), S.134, S.187 -
MOTOR VEHICLES - NEGLIGENCE - Accident - Two Persons killed and several passengers injured -
Evidence of witnesses and spot maharars clearly establishes that passenger tempo was being driven at
very high speed, on a narrow road, there was curvature and also a sign board indicating "go slow" - Thus
vehicles were being driven in rash and negligent manner by driver is established - Moreover after accident
driver sped away without giving information of accident regarded as required under S. 134 of M. V. Act -
Acquittal of accused driver by trial Court resulted in miscarriage of justice - Accused convicted. (Paras
13, 15)
21. 2004 CRI. L. J. 4912 "Ishwar Sadeppa v. State of Karnataka"
Coram : 1 S. R. BANNURMATH, J. ( Single Bench )
Criminal Revn. Petn. No. 1344 of 2002, D/- 30 -1 -2004.
Ishwar Sadeppa Nandennavar, Petitioner v. State of Karnataka, Respondent.
Penal Code (45 of 1860), S.279, S.304A - NEGLIGENCE - DOCTRINES - Rash and negligent driving -
19

Accused auto driver responsible for death of more than dozen people and grievous injuries to others - No
explanation offered by accused in his examination under S. 313 Cr. P. C. - Doctrine of Res Ipsa
Loquitor applies - Conviction of accused under S. 304-A proper - Also, maximum punishment under S.
304-A imposed on accused cannot be reduced in aforesaid circumstances.
1980 Cri LJ 11 (SC); AIR 1999 SC 3535: 1999 Cri LJ 4552; AIR 2000 SC 50 : 2000 Cri LJ 175 and AIR
1997 SC 768 : 1997 Cri LJ 768, Rel. on. (Paras 7, 8, 9, 10, 11, 12)
22. 2002 CRI. L. J. 348 "State of Rajasthan v. Nauratan Mal"
RAJASTHAN HIGH COURT
Coram : 1 SUNIL KUMAR GARG, J. ( Single Bench )
S. B. Criminal Appeal No. 81 of 1986, D/- 5 -9 -2001.
State of Rajasthan, Appellant v. Nauratan Mal, Respondent.
(A) Penal Code (45 of 1860), S.279 - NEGLIGENCE - Rash driving or riding on public way - Negligence -
Proof - Complainant stating that Roadways Bus being rashly driven by accused struck against his cow
resulting into her death - Absence of evidence to show that vehicle was being driven rashly or negligently -
Site plan showing that incident took place on middle of road - Possibility that cow might have suddenly
appeared on road and struck against bus could not be ruled out - No offence under S.279 is made
out against accused. (Paras 11, 12)
(B) Penal Code (45 of 1860), S.279 - NEGLIGENCE - Rash driving or riding on public way - Proof -
Complainant stating that vehicle in question was at high speed - However, speed cannot be sole factor
for determining negligent driving unless proved by cogent evidence that vehicle was being driven
rashly or negligently. (Para 11)
(C) Penal Code (45 of 1860), S.429 - MISCHIEF - Mischief by killing or maiming cattle - Proof - Intention is
gist of offence - Accident case - Complainant stating that Roadways Bus being rashly and negligently
driven by accused struck against his cow resulting into her death - Merely because an accident took place
on public highway - Is not sufficient to prove charge for offence under S. 429 in absence of mens rea of
causing accident. (Para 14)
20

23. 2001 CRI. L. J. 5 "State v. Mohammed Yusuf"
Coram : 1 M. F. SALDANHA, J. ( Single Bench )
State, Appellant v. Mohammed Yusuf, Respondent.
Penal Code (45 of 1860), S.304A, S.279 - NEGLIGENCE - Death by
negligence - Rash and negligent driving -- Evidence on record showing that deceased pedestrian alighted
from jeep and while crossing highway impatiently collided with motor cycle - Incident occurred at night - No
evidence to show that accused motor cyclist was wholly responsible for accident - There was possibility
that deceased was main contributory to the incident in question - Order acquitting accused - No
Interference.
Criminal P.C. (2 of 1974), S.378. (Para 4)
24. 1996 CRI. L. J. 369 "Pawan Kumar Sharma v. State of U. P."
Coram : 1 S. C. JAIN, J. ( Single Bench )
Criminal Revn. No. 784 of 1995, D/- 6 -7 -1995.*
Pawan Kumar Sharma, Petitioner v. State of U.P., Respondent.
Penal Code (45 of 1860), S.429, S.279, S.304A - CRUELTY TO ANIMALS -
"Cattle killing" - Mischief- Proof of - Prosecution must establish that accused had intention or
knowledge of likelihood to cause wrongful loss or damage - Truck of accused accidentally hitting
bullock-cart of deceased from behind - Caused death of buffalo and driver of the cart - No allegation that
accused had grudge against deceased - Mens rea of causing the loss absent - Conviction for offence under
S. 429 not sustainable - However in circumstances, the findings of Court as regards conviction of accused
under S. 279 and S. 304A, not interfered with. (Paras 11, 15)
21

25. 1996 CRI. L. J. 1463 "S. N. Naik, v. State of Maharashtra"
BOMBAY HIGH COURT
Coram : 1 R. G. VAIDYANATHA, J. ( Single Bench )
Criminal Writ Petition No. 182 of 1988, D/- 9 -11 -1995.
Dr. Satyasaheel Nandlal Naik, Petitioner v. State of Maharashtra and another, Respondent.
(A) Penal Code (45 of 1860), S.176 - PUBLIC SERVANTS - CRIMINAL PROCEEDINGS - "Intentionally
omits"- No case made out of intentional omission - Prosecution is liable to be quashed. (Para 5)
(B) Penal Code (45 of 1860), S.176 - NEGLIGENCE - HURT - Duty of doctor - Doctor is not obliged to
inform police when he treats a patient who has met with vehicle accident.
Criminal P.C. (2 of 1974), S.39.
Penal Code (45 of 1860), S.279, S.337, S.338, S.304A.
The only one provision which cast a duty on public to give information to the public about commission of
offence is S. 39 of the Code of Criminal Procedure, Certain offences are mentioned in that Section, but it
does not refer to S. 279, 337 or 304A I.P.C. Penal provisions must be construed strictly. If there is no
statutory or legal liability for a citizen to inform the police regarding a particular offence, then the
prosecution under S. 176 of the I.P.C. cannot stand. (Para 6)
There is no provision under S. 134 of Motor Vehicles Act making it compulsory for public or doctor to inform
the police about a motor vehicle accident (Para 7)
26. 1992 CRI. L. J. 116 "Madhab Bagh v. State of Orissa"
ORISSA HIGH COURT
Coram : 1 A. PASAYAT, J. ( Single Bench )
Criminal Revision No. 658 of 1987, D/- 12 -7 -1991.
Madhab Bagh, Petitioner v. State of Orissa, Opposite Party.
(A) Penal Code (45 of 1860), S.279, S.304A - NEGLIGENCE - Rash and negligent driving - Speed of
vehicle - Not always determinative factor of rash and negligent driving.
22

Motor Vehicles Act (4 of 1939), S.118A. (Para 4)
(B) Motor Vehicles Act (4 of 1939), S.89, S.118A - MOTOR VEHICLES - Motor accident - Duty of driver
to move victim to nearest hospital - Possibility of assault by public - Does not absolve accused of
his duty under S. 89. (Para 5)
27. 1991 CRI. L. J. 771 "Gurcharan Singh v. State of H. P."
Coram : 1 BHAWANI SINGH, J. ( Single Bench )
Criminal Revn. No.5 of 1987, D/- 27 -6 -1989.
Gurcharan Singh, Petitioner v. State of H.P., Respondent.
Penal Code (45 of 1860), S.279, S.304A - NEGLIGENCE - TORT - Accident causing death of child - Rash
or negligent driving - Evidence - Full loaded truck running on State highway and not National highway -
Speed cannot be considered very high - Mere statements of witnesses that truck was moving in "high
speed" - Does not indicate rashness on part of driver - Evidence of driver that child got frightened on
blowing of horn by him and suddenly started crossing road which could not be seen by him, found reliable -
Held that it was a case of pure accident - No rashness and negligence on part of driver -Conviction
u/S.304-A set aside.
Torts-Rash and negligent driving. (Paras 14, 15, 16, 17)
28. 1986 CRI. L. J. 390 "Prabhudas v. P. K. Datta"
GUJARAT HIGH COURT
Coram : 2 N. H. BHATT AND R. A. MEHTA, JJ. ( Division Bench )
Special Civil Appln. No. 3456 of 1984, D/- 6 -12 -1984.
Prabhudas H. Thakkar, Petitioner v. P.K. Datta and another, Respondents.
Penal Code (45 of 1860), S.279 - MOTOR VEHICLES - More than two persons on two wheeled vehicle
- Not by itself offence u/S.279. S.279 will stand attracted if and only if the act of driving on a public way is
conducted in a manner not ordinarily rash or negligent but so rash and negligent from which it can be
legitimately felt that human life is endangered or safety of any other person is involved. It must therefore be
23

declared that any attempt on the part of the police personnel in the city of Baroda to arrest people on the
two wheeled vehicle being more than two in number as if by itself they committed an offence u/S.279 is ex
facie unjustifiable. It must also be held that only the driver will be liable, if at all he is and not the pillion rider
or riders. (Para 3)
29. 1972 CRI. L. J. 404 (V 78 C 95) "Pyareian v. State of Mysore"
MYSORE HIGH COURT
Coram : 1 C. HONNIAH, J. ( Single Bench )
Criminal Revn. Petn. No. 235 of 1970, D/- 18 -12 -1970, against order of 1st Addl. S.J. Bangalore, D/-
14 -4 -1970.
Pyareian, Accused, Petitioner v. The State of Mysore, Complainant, Respondent.
(A) Penal Code (45 of 1860), S.279 - NEGLIGENCE - Driver on public way should not expect reasonable
care from road users - He most anticipate even their negligent acts which are reasonably foreseeable.
(Para 3)
(B) Penal Code (45 of 1860), S.279 - NEGLIGENCE - In determining whether a person is negligent and
rash, the standard of reasonable care is that which is reasonably to be demanded in the circumstances.
(Para 5)
(C) Penal Code (45 of 1860), S.279 - NEGLIGENCE - Criminal rashness is hazarding a dangerous or
wanton act with the knowledge that it may that it may cause injury but without intention or knowledge to
cause that effect - The criminality lies in running the risk of doing such an act with recklessness or in
difference as to the consequences. (Para 7)
30. 1972 CRI. L. J. 1404 (V 78 C 360) "Krushna Chandra v. State"
ORISSA HIGH COURT
Coram : 1 R. N. MISRA, J. ( Single Bench )
Criminal Revn. No. 2 of 1971, D/- 29 -3 -1972 from order of A. K. Patra Addl. S.J. Puri, D/- 28 -9 -1970.
Krushna Chandra Ojha, Petitioner v. State, Opposite Party.
Penal Code (45 of 1860), S.304A - NEGLIGENCE - Death must be direct result of rash and negligent
24

act and the act must be the ause without intervention of another's negligence - It must be the causa
causas - It is not enough that it may have been the causa sine qua non.
AIR 1965 SC 1616, Rel. on.
Penal Code (45 of 1860), S.279. (Para 4)
31. 1969 CRI. L. J. 389 (Vol. 78, C. N. 94)* "Nanalal Harishanker v. State"
GUJARAT HIGH COURT =AIR 1969 GUJARAT 62 (V 56 C 12)
Coram : 1 J. M. SHETH, J. ( Single Bench )
Criminal Appeal No. 521 of 1967, D/- 3 -8 -1967, against judgement of City Magistrate, 4th Court,
Ahmedabad in Summary Case No. 1151 of 1966.
Nanalal Harishanker, Appellant v. State of Gujarat, Respondent.
(A) Penal Code (45 of 1860), S.279 and S.337 and S.71 - COMMISSION OF OFFENCE - HURT -
NEGLIGENCE - PENOLOGY - Offences under Ss.279 and 337 are distinct - Separate conviction for
offences can be recorded at same time - Commission of offence in same transaction - S.71 governs
assessment of punishment.
AIR 1939 Pat 388, Diss. from.
The offences under Ss. 279 and 337 are offences of different nature and the conduct referred to therein is
penalised with different objects. Therefore a person can be convicted of an offence under S. 279 as well as
of an offence under S. 337 at the same time. If these offences, however, are committed in the same
transaction, S. 71 will govern the assessment of punishment. Thus while the punishment to be awarded for
both the offences in such a case should not exceed the maximum punishment that may be awarded for any
of these offences, there is nothing in S. 71 to indicate that no separate punishment can be awarded for
both the offences and if it is awarded it is illegal. AIR 1939 Pat 388 Dissented from. AIR 1960 Bom 269 and
AIR 1956 Madh Bha 141 (FB), Cri Appeal No. 993 of 1965, D/- 31-07-1967 (Guj), Rel. on. (Paras 9 and
12)
(B) Criminal P.C. (5 of 1898), S.262(2), S.362, S.263, S.264 and S.261 - Ahmedabad City Courts Act (19 of
1961), S.14 - EXAMINATION OF ACCUSED - NEGLIGENCE - HURT - MAGISTRATE - SUMMARY TRIAL
- PENOLOGY - Charge for offences under Ss.279 and 337 IPC - Case tried summarily by City Magistrate
25

who was competent to try so and accused convicted for offences - Sentence of 4 months R. I and to pay
fine of Rs. 500 and in default to pay fine or to undergo further R. I. of three months, for offence under
S.279, held, illegal as contravening S.262 (2), Criminal P.C. and S.65, I.P.C.
Penal Code (45 of 1860), S.65. (Para 10)
32. 1969 CRI. L. J. 428 (Vol. 75, C. N. 109) "Anandasingh v. State"
ORISSA HIGH COURT =AIR 1969 ORISSA 49 (V 56 C 20)
Coram : 1 B. K. PATRA, J. ( Single Bench )
Criminal Revn. No. 499 of 1966, D/- 9 -8 -1963. from order of S.J., Koraput, D/- 27 -8 -1966.
Anandasingh Neggi, Petitioner v. State, Opposite Party.
Penal Code (45 of 1860), S.304A, S.279, S.338 - NEGLIGENCE - GRIEVOUS HURT - Scope -
Distinction - Rash or negligent act – Meaning. Rash or negligent act referred to in Section 304-A
means an act which is the immediate cause of death and not an act or omission which can at best
be said to be a remote cause of death. This Section is correlative with Sections 279 and 338, I.P.C.
Section 279 applies to the driving of any vehicle, or riding, on any public way in a manner so rash
or negligent as to endanger human life, or to be likely to cause hurt or injury to any person where
no hurt has actually been caused. Section 338 applies to a case where grievous hurt has been
caused to any person, by an act being done so rashly or negligently as to endanger human life or
the personal safety of others. Section 338 is more general than Section 279 and embraces not only
the act of driving or riding but all acts which endanger human-life or personal safety. Section 304-A
while being as general as Section 338 is restricted to cases where death has been, caused. Thus
there must be direct nexus between the death of a person and the rash or negligent act of the
accused. AIR 1968 SC 829, Rel. on. (Paras 4 and 5)
Cases Referred: Chronological Paras
(1968) AIR 1968 SC 829 (V 55) : 1968 Cri LJ 1013, Suleman Rahiman Mulani v. State of Maharashtra 5
26

33. 1968 CRI. L. J. 933 (V. 74, C. N. 261) "State v. Ramakant Yeshwant"
GOA, DAMAN AND DIU J.C's COURT = AIR 1968 Goa, Daman and Diu 77 (V 55 C 18)
Coram : 1 V. S. JETLEY, J.C. ( Single Bench )
Criminal Revn. Appln. No. 15 of 1967 D/- 4 -12 -1967.
State, Appellant v. Ramakant Yeshwant Nagvencar Respondent.
(A) Penal Code (45 of 1860), S.279 - NEGLIGENCE - Rash and negligent driving - Rash and negligent
driving must endanger human life - Actual injury to life or property, or the presence of any person
on the road is not necessary.
What is rash and negligent driving would depend upon the facts of each case. The decisions in other cases
are illustrative. There is a duty on every user of the road to exercise due care and caution while walking or
driving. It is not necessary for the purposes of Section 279 that the rash or negligent driving should result in
an injury to life of any person or property. It is also not necessary for the prosecution to prove that at the
time of the accident there was any person on the road. What is necessary for the prosecution to establish
under this section is that the vehicle or car was driven on a public road in a manner so rash or negligent as
to endanger human life. (Para 3)
(B) Motor Vehicles Act (4 of 1939) , S.89 and S.113 - MOTOR VEHICLES - Police - Driver - Duties of -
Driver injuring animal need not inform Police - Ss. 89 and 113 not applicable.
In a case where a motor vehicle driver knocks down an animal and fails to inform the Police, the case is not
covered by Section 89 clause (a) or (b). There are also no rules framed under this section. Section 113 is
not applicable, as this section covers cases of disobedience of orders, directions and refusal of information.
(Para 4)
(C) Motor Vehicles Act (4 of 1939) , S.116 - Criminal P.C. (5 of 1898), S.32 - MOTOR VEHICLES -
NEGLIGENCE - SENTENCE IMPOSITION - Sentence - Criminal negligence and rashness - Deterrent
sentence necessary.
It is necessary that in accident cases where criminal negligence or rashness on the part of public vehicle
drivers or others is proved, a sufficiently deterrent sentence is awarded unless there are any extenuating
27

circumstances. It need hardly be emphasised that accidents on account of rash and negligent driving on
public roads are on the increase, and it is the duty of the magistracy to take a serious view except where
circumstances justify a lighter sentence. The public roads should be reasonably safe for pedestrians and
others who use them. (Para 5)
34. 1968 CRI. L. J. 1274 (Vol. 74, C. N. 363) "Babulal v. State"
GUJARAT HIGH COURT = AIR 1968 GUJARAT 240 (V 55 C 38)
Coram : 1 V. B. RAJU, J. ( Single Bench )
Criminal Appeal No. 812 of 1966, D/- 3 -10 -1966, from the judgment of City Magistrate, 4th Court,
Ahmedabad in Criminal Case No. 1868 of 1965.
Babulal Chhotalal, Appellant v. State of Gujarat, Respondent.
Penal Code (45 of 1860), S.338, S.337, S.279 and S.71 - GRIEVOUS HURT - HURT - NEGLIGENCE -
PENOLOGY - Separate convictions u/S.338 and S. 279 and passing of separate sentences
permissible - Provisions of S.71 do not apply as offence u/S.338 does not include an offence
u/S.279.
AIR 1928 Pat 326 and AIR 1939 Pat 388, Dissented from.
AIR 1956 Madh Bha 141 (FB), Not foll.
Criminal P.C. (5 of 1898), S.2.
Offence under S. 279 does not include the offence under Sec. 338 or Sec. 337; nor does the offence
under Sec. 337 or Sec. 338 include the offence under Sec. 279, because the ingredient of driving a
vehicle or riding on a public way is not included in Sec. 337 and Sec. 338. Consequently Sec. 71, I. P.
C., will not be applicable and passing of separate sentences in respect of convictions under Sec. 279 and
Section 338 is legal. AIR 1939 Pat 388 and AIR 1928 Pat 326, Dissented from; AIR 1956 Madh Bha 141
(FB), Not foll. (Para 4)
35 1967 CRI. L. J. 1564 ( Vol. 73, C. N. 431) "Waeezul Khan v. State"
PATNA HIGH COURT = AIR 1987 PATNA 368 (V 54 C 114)
Coram : 1 ANANT SINGH, J. ( Single Bench )
28

Criminal Revn. No. 798 of 1965, D/- 6 -10 -1966, against order of 4th Asst. S.J., Gaya, D/- 9 -4 -1965.
Waeezul Khan, Petitioner v. State of Bihar, Opposite Party.
Penal Code (45 of 1860), S.279 - MOTOR VEHICLES - PUBLIC NUISANCE - NEGLIGENCE - Rash and
negligent driving 'as to endanger human life' - Offence under S. 116 of the Motor Vehicles Act (1939) for
driving 'in a manner which is dangerous to the public' - Offence defined in S.116 of the Meter
Vehicles Act and S.279 of the Penal Code is essentially the same - Person tried and acquitted for an
offence u/S.116 of the Motor Vehicles Act (1939) cannot be tried once again on the same set of facts
for an offence u/S.279 Penal Code - Same set of facts constitute only one offence.
AIR 1953 Pat 56, Dist.
AIR 1966 SC 87 and AIR 1947 Pat 290, Foll. (Paras 6 and 7)
35. 1963 (2) Cri. L. J. 519(1) (Vol. 67, C. N. 156) "Gyansing Prabhatsingh v. State"
GUJARAT HIGH COURT = AIR 1963 GUJARAT 275 (V 50 C 66)
Coram : 1 V. B. RAJU, J. ( Single Bench )
Criminal Revn. Appln. No. 390 of 1961, D/- 25 -1 -1962.
Gyansing Prabhatsingh, Petitioner v. State.
Criminal P.C. (5 of 1898), S.239, Cl.(d) - CHARGE - NEGLIGENCE - collision on motor vehicles - Trial
of drivers for offences u/S.279 and u/S.304-A, Penal Code in one trial is bad.
Penal Code (45 of 1860), S.279, S.304A.
Where the driver of a motor car and a driver of a motor truck coming from different directions collide, they
cannot be tried in one trial for offences under Ss. 279 and 304-A, Penal Code as it cannot be said that
there is one transaction in which different offences have been committed. (Para 1)
A.H. Mehta, for Petitioner (original accused No. 2); H.M. Ghoksi, Govt. Pleader, for State.
36 1961 (1) Cri. L. J. 541 (Vol. 62, C. N. 138) "Fagu Moharana v. State"
ORISSA HIGH COURT = AIR 1961 ORISSA 71 (V 48 C 30)
Coram : 1 R. L. NARASIMHAM, C.J. ( Single Bench )
Criminal Revn. No. 25 of 1959, D/- 28 -10 -1959, from order of Addl. S. J., Ganjam-Boudh D/- 12 -12
29

-1959.
Fagu Moharana, Petitioner v. The State, Opposite Party.
Penal Code (45 of 1860), S.279 - NEGLIGENCE - DOCTRINES - Rash or negligent driving - Petitioner
driving heavily loaded bus uphill along zig-zag road on wrong side at speed between 20 and 25 miles per
hour and colliding with car proceeding from opposite direction on right side - Petitioner held guilty of rash
and negligent driving - Doctrine of contributory negligence does not apply to criminal liability. (Paras
6, 7, 8)
36. 1956 Cri. L. J. 624 (Vol. 57, C. N. 239) "State v. Gulam Meer"
MADHYA PRADESH HIGH COURT = (S) AIR 1956 MADHYA BHARAT 141 (V 43 C 62 May)
FULL BENCH
INDORE BENCH
Coram : 3 DIXIT, CHATURVEDI AND SAMVATSAR, JJ. ( Full Bench )
Criminal Appeal No. 5 of 1954, D/- 20 -11 -1955., decided by Full Bench on order of Reference made by
Nevaskar and Samvatsar, JJ., D/- 2 -2 -1955.
State, Appellant v. Gulam Meer, Respondent.
Penal Code (45 of 1860), S.279, S.337, S.338 and S.71 - NEGLIGENCE - HURT - CHARGE - Offence
u/s.279 and S.337 and S.338 are
@page-CriLJ625
distinct - Conviction and sentences.
Madh. B. LR 1952 Cr. 302 : Madh-B LJ 1952 HCR 459, Overruled.
Criminal P.C. (5 of 1898), S.233.
An offence under Section 279 is distinct from an offence under S. 337 or S. 338 and, therefore, a person
convicted of an offence under Section 337 or Section 338 can also be convicted for an offence under
Section 279. If, however, the two offences are committed in the same transaction, Section 71 will govern
the assessment of punishment. Madh. B. LR 1952 Cr 302 : Madh.-B. LJ 1952 HCR 459, Overruled.
(Para 16)
30

37 .`1953 Cri. L. J. 913 (Travancore-Cochin) "Sivarama Pillai v. State"
TRAVANCORE-COCHIN HIGH COURT
Coram : 2 KOSHI, C.J. AND GOVINDA PILLAI, J. ( Division Bench )
Sivarama Pillai Ayyappan Pillai, Appellant v. State.
Penal Code (45 of 1860), S.279 - NEGLIGENCE - Rash and negligent act need not result in injury to life or
limb - Bare negligence involving risk of injury is enough. (Para 5)
37. 1951 Cri. L. J. 930 (C. N. 314) "Ram Rup v. Crown"
PUNJAB HIGH COURT
Coram : 2 FALSHAW AND SONI, JJ. ( Division Bench )
Criminal Revn. No. 544 of 1948, D/- 4 -11 -1949, referred by Harnam Singh J., D/- 25 -1 -1949.
Ram Rup, Convict, Petitioner v. The Crown.
Penal Code (45 of 1860), S.114, S.107, S.338 and S.279 - ABETMENT - GRIEVOUS HURT -
NEGLIGENCE - Principal offender or abettor - Driver of lorry carrying passengers allowing minor to
drive lorry with full knowledge that minor did not know driving - Rash and negligent driving by minor
resulting in grievous hurt - Driver sitting by the side of minor - Driver if liable as principal offender or as
abettor.
R who was the proper driver and in control of a lorry carrying passengers allowed H a minor, with full
knowledge that H did not know driving well, to drive the lorry so rashly and negligently as to endanger the
lives and personal safety of the passengers in spite of the protests of the passengers. R was sitting by the
side of H when the accident took place. The accident resulted in causing grievous hurt to some passengers
:
Held, that R was liable as a principal offender under the provisions of S. 114. In fact he was the person
driving through the hand and instrumentality of the boy H to whom he had consciously and knowingly given
the steering wheel. Therefore R was himself liable to be punished for offence under Ss. 338 and 279.
31

(Para 4)
Held further, (obiter) that R, in the words of S. 107, Expln. 2 read with Ss. 336 and 279, prior to and at the
time of the rash and negligent driving by H facilitated his rash and negligent driving and, therefore,
intentionally aided him (both by not preventing him from driving as well as by allowing him to drive) in his
act endangering human life and personal safety of others and likely to cause hurt or injury to them. (Para
6)
38. AIR 1961 ORISSA 71 (Vol. 48, C. 30) "Fagu Moharana v. State"
ORISSA HIGH COURT
Coram : 1 R. L. NARASIMHAM, C.J. ( Single Bench )
Fagu Moharana, Petitioner v. The State, Opposite Party.
Criminal Revn. No. 25 of 1959, D/- 28 -10 -1959., from order of Addl. S.J., Ganjam-Boudh, D/- 12 -12
-1959.
Penal Code (45 of 1860), S.279 - NEGLIGENCE - DOCTRINES - Rash or negligent driving - Petitioner
driving heavily loaded bus uphill along zig-zag road on wrong side at speed between 20 and 25 miles per
hour and colliding with car proceeding from opposite direction on right side - Petitioner held guilty of rash
and negligent driving - Doctrine of contributory negligence does not apply to criminal liability. (Paras
6, 7, 8)
39. 2009 AIR SCW 1744 "Puttaswamy v. State of Karnataka"
(From : Karnataka)*
Coram :2 ALTAMAS KABIR AND MARKANDEY KATJU, JJ.
Criminal Appeal No. 2015 of 2008 (@ SLP (Cri.) No. 4483 of 2008), D/- 11 -12 -2008.
Puttaswamy v. State of Karnataka and Anr.
Criminal P.C. (2 of 1974), S.320 - Penal Code (45 of 1860), S.279, S.304A - COMPOUNDING OF
OFFENCE - NEGLIGENCE - SENTENCE REDUCTION - SUPREME COURT - Conviction for non-
compoundable offence - Parties arriving at compromise - Court, in interest of justice, can reduce
sentence while maintaining conviction - Appellant convicted u/S.279, u/S.304A for causing death by
negligent driving - Sentenced to 6 months S.I and fine of Rs. 2,000/- - Parties reaching at
compromise - Supreme Court while maintaining conviction increased fine to Rs. 20,000/- and
32

reduced sentence to period already undergone.
Constitution of India, Art.142. (Paras 9, 10)
40. `AIR 1999 SUPREME COURT 895 "Ram Lal v. State of Jammu and Kashmir"
= 1999 AIR SCW 566
(From : Jammu and Kashmir)*
Coram : 2 K. T. THOMAS AND M. B. SHAH, JJ.
Criminal Appeal No. 70 of 1999 (arising out of S.L.P. (Cri.) No. 3720 of 1998), D/- 25 -1 -1999.
Ram Lal and another, Appellants v. State of J. and K., Respondent.
Criminal P.C. (2 of 1974), S.320 - Penal Code (45 of 1860), S.326 - COMPOUNDING OF OFFENCE -
SENTENCE REDUCTION - Compounding of offences - Offence which is not compoundable under S. 320 -
Cannot be made compoundable with permission of Court - Offence under S. 326, Penal Code, though not
compoundable - Court considering fact that parties have come to settlement and victims were having no
grievance against accused and latter having undergone imprisonment of about six months, sentence
reduced to period already undergone.
(1987) 2 JT (SC) 361 and AIR 1988 SC 2111, Held per incuriam. (Paras 4, 5)
41. AIR 1999 SUPREME COURT 2181 "Surendra Nath Mohanty v. State of Orissa"
= 1999 AIR SCW 2199
(1998 (2) Crimes 110 (Orissa))
Coram : 3 K. T. THOMAS, M. B. SHAH AND D. P. MOHAPATRA, JJ.
Criminal Appeals Nos. 497-98 of 1999 (arising out of Spl. Leave Petn. (Cri.) Nos. 196-97 of 1999), D/- 4 -5
-1999.
Surendra Nath Mohanty and another, Appellants v. State of Orissa, Respondent.
Criminal P.C. (2 of 1974), S.320(9) - Penal Code (45 of 1860), S.326 - GRIEVOUS HURT -
COMPOUNDING OF OFFENCE - SENTENCE REDUCTION - Compounding of offence - Offence under S.
326, IPC - Not compoundable - However, considering fact that parties have settled their disputes outside
Court - And, 10 years have elapsed from date of incident - And, accused have already undergone 3 months
33

rigorous imprisonment - Sentence of imprisonment reduced to period already undergone.
AIR 1973 SC 2418 and AIR 1988 SC 2111, Overruled.
(1987) 2 JT (SC) 361, Held Per in-curiam. (Paras 5, 8)
42. 2008 AIR SCW 8119 "State of Haryana v. Sher Singh"
(From : Punjab and Haryana)*
Coram :3 Dr. A. PASAYAT, C. K. THAKKER AND D. K. JAIN, JJ.
State of Haryana v. Sher Singh.
Penal Code (45 of 1860), S.304A, S.279 - NEGLIGENCE - Death due to rash and negligent driving -
Deceased fatally hit by bus - Alleged to be driven by accused - Eye-witness turning hostile - Dying
declaration made by deceased stating that bus was driven rashly - Name of accused however not
mentioned - No
@page-SCW8120
other material to show that accused was driving bus at time of accident - Accused liable to be acquitted.
(Para 6)
43. 2007 AIR SCW 7104 "Naresh Giri v. State of M. P."
(From : Madhya Pradesh)*
Coram :2 Dr. A. PASAYAT AND P. SATHASIVAM, JJ.
Criminal Appeal No. 1530 of 2007 (arising out of SLP (Cri.) No. 4805 of 2006), D/- 12 -11 -2007.
Naresh Giri v. State of M. P.
(A) Penal Code (45 of 1860), S.304A - NEGLIGENCE - MURDER - Causing death by negligence - S. 304-
A applies to cases where there is no intention to cause death and no knowledge that act done, in all
probabilities, will cause death - This provision is directed at offences outside range of Sections 299 and
300. (Para 6)
(B) Criminal P.C. (2 of 1974), S.216 - Penal Code (45 of 1860), S.302, S.304A, S.279, S.337 -
NEGLIGENCE - CHARGE - MURDER - HURT - GRIEVOUS HURT - Alteration of charges - Murder or
34

causing death by negligence - A train hit bus at railway crossing - Charges framed against bus driver under
S. 300 and alternatively under Ss. 304, 325 and 323, IPC - Negligence on part of driver of bus resulting in
death of two persons - There may be no motive or intention - Still a person may venture or practice such
rashness or negligence - Prima facie S. 300 has no application - Charges stand altered to S. 304-A along
with Ss. 279 and 337, IPC.
Cri. Revn. No. 765 of 2005, D/- 26-6-2006 (M.P.), Reversed. (Paras 7, 14A, 15)
(C) Penal Code (45 of 1860), S.304A - NEGLIGENCE - WORDS AND PHRASES - Death by
negligence - Word 'negligence' - Meaning of. (Paras 10, 11)
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 Karnataka, (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." AIR 1979 SC 1848
35

44. 2001 (4) GLR 3424
CRIMINAL REVISION APPLICATION
Before the Hon'ble MR H H MEHTA,J
MAHADEV BHAGWANJI PATEL vs. STATE OF GUJARAT
No : 240
Year : 1992 Decided on : 24/4/2001
(B) Indian Penal Code, 1860 (XLV of 1860) - Secs. 279 and 304A - Rash and negligent acts - Concepts
explained.
The words "rash or negligent" are termed closely allied, but they are nonetheless distinguishable. In cases
of negligence, the party does not perform an act to which he is obliged; he breaks a positive duty, he does
not advert to the act which it is his duty to do. In cases of rashness, the party does not act which he is
bound to forbear; he breaks a negative duty. Here, he adverts to the act, but not to the consequences of
the act he does. In rash as well as in negligent act, no thought is bestowed on the consequences. In the
one, there is a knowledge of the consequence, but there is over-confidence which makes one believe its
happening unlikely. In the other, the consequence is never adverted to. Negligence may be defined to be
the breach of a duty caused by the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs, would do or the doing something
which a prudent and reasonable man would not do. Negligence is not an affirmative word; it is the absence
of such skill, care and diligence as it was the duty of the person to bring to the performance of the work
which he is said not to have performed. The question whether a certain act is rash or negligent cannot be
answered in the abstract. It must depend upon the time, place and the nature of the road. It is the duty of all
persons driving on a public way to exercise that degree of care and caution for the safety of others, which a
prudent man might reasonably be expected to exercise. What is necessary for the prosecution to establish
36

under Sec. 279 I.P.C. is that the vehicle or car was driven on a public road in a manner so rash or negligent
as to endanger human life. (Para 21)
*** 1974 GLT 2 ***
Before the Hon'ble MR A A DAVE,J
ISHWARBHAI MAVJIBHAI vs. THE STATE
No : 0
Year : Decided on : 1/1/1900
(A) Indian Penal Code, 1860 - Secs. 71, 279 and 304A - Whether the Magistrate is right in awarding
two separate sentences under Sec. 71 for offences under secs. 304A and 279 of I.P. Code -Whether
the offence under Sec. 279 is covered under Sec. 304A, I.P.C.
Motor Vehicles Act - Secs. 89 and 118(A) - Indian Penal Code-Sec. 337 -Whether offences under Sec. 337,
I.P.C. and secs. 89 and 118(A) of the Motor Vehicles Act are distinct and separate offences.
The act of the appellant in driving the vehicle in a rash or negligent manner so as to endanger human life
and causing death of a person thereby, would be an offence both under secs. 304A and 279, I.P.C. The
maximum sentence prescribed under Sec. 304A, I.P.C. is imprisonment which may extend to two years or
with fine or with both. The sentence prescribed under Sec. 279, I.P.C. is imprisonment which may extend to
six months or with fine which may extend to Rs. 1,000/- or with both. In such cases Sec. 71, I.P.C. enjoins
on the Court that the offender should not be punished with a more severe offence than the Court which
tries him could award for any one of such offences. In the instant case, the learned Magistrate has
sentenced the accused to imprisonment for three months under Sec. 304A, I.P.C. and also has sentenced
him to pay a fine of Rs. 200/- under Sec. 279, I.P.C. Thus, the combined sentence awarded by the Court
under two different sections does not exceed the punishment which he could have awarded under any one
of these sections. It cannot, therefore, be said that two separate sentences awarded by the learned
Magistrate under secs. 304A and 279, I.P.C. in the present case is in any way illegal. So far as the offences
under Sec. 337, I.P.C. and secs. 89 and 118(A) of the Motor Vehicles Act are concerned, they are quite
distinct offences and the appellant was awarded separate sentences as provided thereunder.
37

1968 AIR 240 Guj
CRIMINAL APPEAL
Before the Hon'ble MR V B RAJU,J
BABULAL CHHOTALAL vs. STATE OF GUJARAT
No : 812
Year : 1966 Decided on : 3/10/1966
(A) INDIAN PENAL CODE, 1860 (XLV OF 1860) - Secs. 279, 337 and 338 - Separate convictions under
Sec. 338 and Sec. 279 and passing of separate sentences permissible - Provisions of Sec. 71 do not
apply - Offence under Sec. 279 does not include the offence under Sec. 338 or Sec. 337 nor does the
offence under Sec. 377 or Sec. 338 include the offence under Sec. 279, because the ingredients of driving
a vehicle or riding on a public way is not included in Sec. 337 and Sec. 338 - Passing of separate sentence
in respect of conviction under Sec. 279 and Sec. 338 is legal.
1965 GLR 226
CRIMINAL REVISION
Before the Hon'ble MR V B RAJU,J
JAYANTILAL RUPCHAND SHAH vs. STATE OF GUJARAT
No : 76
Year : 1963 Decided on : 29/9/1964
(A) MOTOR VEHICLES ACT, 1939 (IV OF 1939) - Secs. 116 and 121 - Indian Penal Code, 1860 - Secs.
71, 279 and 338 - General Clauses Act, 1897 - Sec. 26 - Can be punished only under one of the Acts.
In view of Sec. 26 of the General Clauses Act, a person cannot be punished both under the Penal Code
and under the Motor Vehicles Act, but he can be punished only under either or any of them in respect of the
38

same act. Sec. 71 of the Penal Code does not apply where an act constitutes an offence under two or more
enactments.
B. H. Desai, for the Applicant.
H. M, Choksi, Govt. Pleader, for the State.
RAJU J. The applicant was convicted under section 279 and 338 I. P. Code and sections 116 and 121 of
the Motor Vehicles Act. In revision it is urged that the finding of rashness and negligence is not sound. It is
true that rashness or negligence though questions of facts are inferences from facts. The facts found are
that two carts were coming from opposite directions on the road and the applicant took his jeep car on the
extreme left of the road and struck a tree and injured the person standing near the tree. On these facts the
inference of rashness and negligence would be quite sound and I cannot say that the inference is improper.
A portion of the road which is not meant for use is not ordinarily expected to be used. It may be used in ex-
ceptional cases provided the driver of a motor vehicle takes care to see that there is no possibility of caus -
ing any injury to any person. But this has not been done in the present case and therefore the inference of
rashness and negligence is quite proper and the conviction cannot therefore be challenged in revision.
2. It is next contended that where there is a conviction under section 279 I. P. Code and section 338 I. P.
Code there cannot be a conviction under section 116 of the Motor Vehicles Act. The provision contained in
section 71 I. P. Code and section 26 of the General Clauses Act must be borne in mind. Section 71 I. P.
Code reads as follows:-
"""Where anything which is an offence is made up of parts any of which parts is itself an offence the of-
fender shall not be punished with the punishment of more than one of such offences unless it be so ex-
pressly provided.
Where anything is an offence falling within two or more separate definitions of any law in force for the time
being by which offences are defined or punished, or
Where several acts of which one or more than one would by itself or themselves constitute an offence con-
stitute when combined a different offence the offender shall not be punished with a more severe punish-
ment than the Court which tries him could award for any one of such offences."""
Section 26 of the General Clauses Act reads as follows:-
""Where an act or omission constitutes an offence under two or more enactments then the offender shall
be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to
be punished twice for the same offence."""
39

3. The Indian Penal Code and the Motor Vehicles Act are two separate enactments and therefore section
26 of the General Clauses Act would apply. The applicant is prosecuted for an act which according to the
prosecution falls under sections 279 and 338 I. P. Code and section 116 """Decided on 29-9-64 and 1-10-
64. Criminal Revision Application No. 76 of 1963. [A portion of the judgment approved fox reporting Is
published. of the Motor Vehicles Act. In view of section 26 of the General Clauses Act the applicant cannot
be punished both under the Penal Code and under the Motor Vehicles Act but he can be punished only un-
der either or any of them in respect of the same act. Section 71 of the Penal Code applies where an act is
an offence falling within two or more separate definitions of any specific enactment. That does not apply
where an act constitutes an offence under two or more enactments. Section 71 of the Penal Code applies
where the act is an offence under two or more separate definitions of any particular enactment. For exam-
ple an act may be an offence both under section 323 I. P. Code and section 324 I. P. (:-ode. To convict a
person both under the Indian Penal Code and under the Motor Vehicles Act and to give him two separate
sentences would be to punish shim twice in respect of the same act which is contrary to section 26 of the
General Clauses Act. The conviction of the applicant under section 116 of the Motor Vehicles Act is there-
fore set aside. But his conviction under section 121 of the Motor Vehicles Act is not set aside because the
said conviction relates to a different act.
2012 (1) G.L.H. 405
SUPREME COURT
R. M. LODHA AND
JAGDISH SINGH, JJ.
Alister Anthony Pareira ...Appellant
Versus
State of Maharashtra ....Respondent
Criminal Appeal No. 1318-1320 of 2007.
D/- 12.01.2012.
[A] CRIMINAL LAWS - Indian Penal Code, 1860 - S. 337 and S. 338 r/w. S. 304 - Part II - Ap-
peal against conviction - At the time of incident, the appellant was found to have consumed alco-
hol - Liquor bottle was recovered from the appellant s car - On his medical examination, he was
found to have 0.112% w/v liquor (ethyl alcohol) in his blood - Sections 304 Part II IPC and Sec-
tion 338 IPC - Two charges under these Sections cannot co-exist - Injuries to eight persons and
committed with knowledge death of seven persons - Section 304 IPC provides for punishment for
40

culpable homicide not amounting to murder - Although Section does not specify Part I and Part
II but for the sake of convenience, the investigators, the prosecutors, the lawyers, the Judges and
the authors refer to the first paragraph of the Section as Part-I while the second paragraph is re-
ferred to as Part-II - The constituent elements of Part I and Part II are different and, conse-
quently, the difference in punishment - For punishment under Section 304 Part I, the prosecution
must prove : the death of the person in question; that such death was caused by the act of the ac-
cused and that the accused intended by such act to cause death or cause such bodily injury as was
likely to cause death - As regards punishment for Section 304 Part II, the prosecution has to
prove the death of the person in question; that such death was caused by the act of the accused
and that he knew that such act of his was likely to cause death - In order to find out that an of-
fence is culpable homicide not amounting to murder - To constitute the offence of culpable homi-
cide - The death must be caused by doing an act : (a) with the intention of causing such bodily in-
jury as is likely to cause death, or (b) with the knowledge that the doer is likely by such act to
cause death - Section 300 deals with murder and also provides for exceptions - The culpable
homicide is murder if the act by which the death is cause is done: (1) with the intention of causing
death, (2) with the intention of causing such bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is caused, or (3) with the intention of causing
such bodily injury as is sufficient in the ordinary course of nature to cause death, or (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 - The exceptions provide that the culpable
homicide will not be murder if that the culpable homicide will not be murder if that act is done
with the intention or knowledge in the circumstances and subject to the conditions specified
therein - In other words, the culpable homicide is not murder if the act by which death is caused
is done in extenuating circumstances and such act is covered by one of the five exceptions set out
in the later part of Section 300 - The last clause of Sec. 299 and clause fourthly of Sec. 300 are
based on the knowledge of the likely or probable consequences of the act and do not connote any
intention driving on a public road so as to endanger human life or to be likely to cause hurt or in-
jury to any other person an offence and provides for punishment which may extend to six
months, or with fine - Causing death by negligence is an offence under Section 304-A - Section
336 IPC says that whoever does any act so rashly or negligently as to endanger human life or the
personal safety of others, shall be punished with imprisonment of either description for a term
41

which may extend to three months, or with fine - The scheme of Sections 279, 304A, 336, 337 and
338 leaves no manner of doubt that these offences are punished because of the inherent danger of
the acts specified therein irrespective of knowledge or intention to produce the result and irre-
spective of the result - These Sections make punishable the acts themselves which are likely to
cause death or injury to human life - If the act is done with the knowledge of the dangerous con-
sequences which are likely to follow - If death is caused then not only that the punishment is for
the act but also for the resulting homicide and a case may fall within Section 299 or Section 300
depending upon the mental state of the accused viz., as to whether the act was done with once
kind of knowledge or the other or the intention - Knowledge is awareness on the part of the per-
son concerned of the consequences of his act of omission or commission indicating his state of
mind - There may be knowledge of likely consequences without any intention - Criminal culpabil-
ity is determined by referring to what a person with reasonable prudence would have known -
Rash or negligent driving on a public road with the knowledge of the dangerous character and
the likely effect of the act and resulting in death may fall in the category of culpable homicide not
amounting to murder - A person, doing an act of rash or negligent driving, if aware of a risk that
a particular consequence is likely to result and that result occurs, may be held guilty not only of
the act but also of the result - The cases which fall within last clause of Section 299 but not within
clause fourthly of Section 300 may cover the cases of rash or negligent act done with the knowl-
edge of the likelihood of its dangerous consequences and may entail punishment under Section
304 Part II IPC - Section 304 A IPC takes out of its ambit the cases of death of any person by do-
ing any rash or negligent act amounting to culpable homicide of either description - A person, re-
sponsible for a reckless or rash or negligent act that causes death which he had knowledge as a
reasonable man that such act was dangerous enough to lead to some untoward thing and the
death was likely to be caused, may be attributed with the knowledge of the consequence and may
be fastened with culpability of homicide not amounting to murder and punishable under Section
304 Part II IPC - There is no incongruity, if simultaneous with the offence under Section 304 Part
II, a person who had 28 done an act so rashly or negligently endangering human life or the per-
sonal safety of the others and causes grievous hurt to any person is tried for the offence under
Section 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.
42

The prosecution case against the appellant is this: the 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 appellant's 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. (Para 2)
The above Section is in two parts. Although Section does not specify Part I and Part II but for the sake
of convenience, the investigators, the prosecutors, the Lawyers, the Judges and the Authors refer to the
first paragraph of the Section as Part I while the second paragraph is referred to as Part II. The con-
stituent elements of Part I and Part II are different and, consequently, the difference in punishment. For
punishment under Section 304 Part I, the prosecution must prove: the death of the person in question;
that such death was caused by the act of the accused and that the accused intended by such act to cause
death or cause such bodily injury as was likely to cause death. As regards punishment for Section 304
Part II, the prosecution has to prove the death of the person in question; that such death was caused by
the act of the accused and that he knew that such act of his was likely to cause death. In order to find
out that an offence is `culpable homicide not amounting to murder' - since Section 304 does not define
this expression - Sections 299 and 300 IPC have to be seen. Section 299 IPC reads as under :
"S.-299. - Culpable homicide.--Whoever causes 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 knowl-
edge that he is likely by such act to cause death, commits the offence of culpable homicide." (Para 26)
The scheme of Sections 279, 304A, 336, 337 and 338 leaves no manner of doubt that these offences are
punished because of the inherent danger of the acts specified therein irrespective of knowledge or in-
tention to produce the result and irrespective of the result. These Sections make punishable the acts
themselves which are likely to cause death or injury to human life. The question is whether indictment
of an accused under Section 304 Part II and Section 338 IPC can co-exist in a case of single rash or
negligent act. We think it can. We do not think that two charges are mutually destructive. If e act is
43

done with the knowledge of the dangerous consequences which are likely to follow and if death is
caused then not only that the punishment is for the act but also for the resulting homicide and a case
may fall within Section 299 or Section 300 depending upon the mental state of the accused viz., as to
whether the act was done with one kind of knowledge or the other or the intention. Knowledge is
awareness on the part of the person concerned of the consequences of his act of omission or commis-
sion indicating his state of mind. There may be knowledge of likely consequences without any inten-
tion. Criminal culpability is determined by referring to what a person with reasonable prudence would
have known. (Para 39)
Rash or negligent driving on a public road with the knowledge of the dangerous character and the
likely effect of the act and resulting in death may fall in the category of culpable homicide not amount-
ing to murder. A person, doing an act of rash or negligent driving, if aware of a risk that a particular
consequence is likely to result and that result occurs, may be held guilty not only of the act but also of
the result. As a matter of law - in view of the provisions of the IPC - the cases which fall within last
clause of Section 299 but not within clause `fourthly' of Section 300 may cover the cases of rash or
negligent act done with the knowledge of the likelihood of its dangerous consequences and may entail
punishment under Section 304 Part II IPC. Section 304A IPC takes out of its ambit the cases of death of
any person by doing any rash or negligent act amounting to culpable homicide of either description.
(Para 40)
A person, responsible for a reckless or rash or negligent act that causes death which he had knowledge
as a reasonable man that such act was dangerous enough to lead to some untoward thing and the death
was likely to be caused, may be attributed with the knowledge of the consequence and may be fastened
with culpability of homicide not amounting to murder and punishable under Section 304 Part II IPC.
(Para 41)
In view of the above, in 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 conse-
quences. (Para 43)
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
44

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 Sec-
tion 338 IPC for a rash or negligent act resulting in injuries to eight persons and at the same time com-
mitted with the knowledge resulting in death of seven persons, the appellant has been asked to face
legally impermissible course. (Para 44)
[B] Code of Criminal Procedure, 1973 - Motor Vehicles Act, 1988 - S. 185, S. 66(1)(b) - Bombay
Prohibition Act, 1949 - No charge under - Not putting to him the entire incriminating evidence let
in by the prosecution, particularly the evidence relating to appellant s drunken condition - Held if
the charge under Section 304 Part II IPC framed against the appellant is seen, it would not be
clear that the ingredients of Section 304 Part II IPC are implicit in that charge - Omission of the
words in drunken condition in the charge is not very material and, in any case, such omission had
not at all resulted in prejudice to the appellant as he was fully aware of the prosecution evidence
which consisted of drunken condition of the appellant at the time of incident.
It is a fact that no charge under Section 185 of the Motor Vehicles Act, 1988 and Section 66(1)(b) of the
Bombay Prohibition Act, 1949 was framed against the appellant. It is also a fact that in the charge
framed against the appellant under Section 304 Part II IPC, the words `drunken condition' are not stated
and the charge reads; `on November 12, 2006 between 3.45 to 4.00 a.m. he was driving the car bearing
Registration No. MH-01-R-580 rashly and negligently with knowledge that people are sleeping on
footpath and likely to cause death of those persons rammed over the footpath and thereby caused death
of 8 persons who were sleeping on footpath on Carter Road, Bandra (West), Mumbai and thereby com-
mitted an offence punishable under Section 304 Part II IPC'. The question is whether the omission of
the words, `in drunken condition' after the words `negligently' and before the words `with knowledge'
has caused any prejudice to the appellant. (Para 47)
Section 464 of the Code reads as follows :
"S.464. - Effect of omission to frame, or absence of, or error in, charge.-
(1) No finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely
on the ground that no charge was framed or on the ground of any error, omission or irregularity in the
charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation
or revision, a failure of justice has in fact been occasioned thereby.
45

(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been
occasioned, it may-
(a) In the case of an omission to frame a charge, order that a charge be framed and that the trial be
recommenced from the point immediately after the framing of the charge.
(b) In the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a
charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be
preferred against the accused in respect of the facts proved, it shall quash the conviction. (Para 48)
[C] Indian Penal Code, 1860 - S. 304 Part II, S. 338 and S. 337 - Whether established beyond rea-
sonable doubt and whether there is a presumption that man knows the natural and likely conse-
quences of his acts - Act does not become voluntary act simple because its consequences were un-
foreseen - The cases of negligence or of rashness or dangerous driving do not eliminate the act be-
ing voluntary - Essential ingredients of S. 304 Part II IPC have been successfully established by
the prosecution against the appellant.
The crucial question now remains to be seen is whether the prosecution evidence establishes beyond
reasonable doubt the commission of offence under Section 304 Part II IPC, Section 338 IPC and Sec-
tion 337 IPC against the appellant. (Para 60)
[D] Indian Penal Code, 1860 - Quantum of punishment - Object and purpose of Criminal Law
and imposition of appropriate, adequate, just and proportionate sentence commensurate with the
nature and gravity of crime and the manner in which the crime is done - There is no straitjacket
formula for sentencing an accused on proof of crime - The Courts have evolved certain principles
: twin objective of the sentencing policy is deterrent and correct - What sentence would meet the
ends of justice depends on the facts and circumstance of each case and the Court must keep in
mind that gravity of the crime, motive for the crime, nature of the offence and all other attendant
circumstances - Principle of proportionality in sentencing a crime doer is well entrenched in
criminal jurisprudence - While awarding sentence, the Court must take into consideration all as-
pects including social interest and consciousness of the society for award of appropriate sentence.
46

In the case of Dalbir Singh (2000) 5 SCC 82, this Court was concerned with a case where the accused
was held guilty of the offence under Section 304A IPC. The Court made the following observations (at
Pages 84-85 of the Report):
"1. When automobiles have become death traps any leniency shown to drivers who are found guilty of
rash driving would be at the risk of further escalation of road accidents. All those who are manning the
steering of automobiles, particularly professional drivers, must be kept under constant reminders of
their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One
of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element
in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving
frivolous and a frolic."
Then while dealing with Section 4 of the Probation of Offenders Act, 1958, it was observed that Sec-
tion 4 could be resorted to when the Court considers the circumstances of the case, particularly the na-
ture of the offence, and the Court forms its opinion that it is suitable and appropriate for accomplishing
a specified object that the offender can be released on the probation of good conduct. For application of
Section 4 of the Probation of Offenders Act, 1958 to convict under Section 304A IPC, the Court stated
in paragraph 11 of the Report (at Pg. 86) thus :
"Courts must bear in mind that when any plea is made based on Section 4 of the PO Act for application
to a convicted person under Section 304-A IPC, that road accidents have proliferated to an alarming ex-
tent and the toll is galloping day by day in India, and that no solution is in sight nor suggested by any
quarter to bring them down...."
Further, dealing with this aspect, in paragraph 13 (at page 87) of the Report, this Court stated :
"Bearing in mind the galloping trend in road accidents in India and the devastating consequences visit-
ing the victims and their families, criminal Courts cannot treat the nature of the offence under Section
304-A IPC as attracting the benevolent provisions of Section 4 of the PO Act. While considering the
quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of au-
tomobiles, one of the prime considerations should be deterrence. A professional driver pedals the accel-
erator of the automobile almost throughout his working hours. He must constantly inform himself that
he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a
vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not
necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death
47

Useful judgment on ipc 279,337, 338, 304 a short notes

Useful judgment on ipc 279,337, 338, 304 a short notes

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Useful judgment on ipc 279,337, 338, 304 a short notes