SUPREME COURT OF INDIA
Rathnashalvan
Vs
State of Karnataka
Crl.A.No. 45 of 2007
(Arijit Pasayat and S.H.Kapadia,JJ.)
11.01.2007
JUDGMENT
Dr.Arijit Pasayat, J.
1. Leave granted.
2. Appellant calls in question legality of the judgment rendered by a learned Single Judge of the Karnataka High Court dismissing the criminal revision filed by the appellant questioning correctness of the judgment of learned Second Additional Civil Judge (Jr. Dn.) & JMFC, Hassan. The appellant was convicted for offences punishable under Section 304-A, 279 and 337 of the Indian Penal Code, 1860. He was sentenced to pay a fine of Rs. 700/- for the offence punishable under Section 279 Indian Penal Code, 1860, Rs. 300/- for the offence punishable under Section 337 Indian Penal Code, 1860 and simple imprisonment for six months for the offence punishable under Section 304-A Indian Penal Code, 1860. Default stipulations were provided in respect of the fines imposed. An appeal was preferred which was partially allowed by leaned Additional Sessions Judge, Hassan. The conviction in terms of Section 279 was set aside. However, in respect of Sections 337 and 304-A Indian Penal Code, 1860 the conviction was maintained along with the sentences imposed. In the revision petition filed before the High Court the primary stand was that there was no rash and negligence involved because the vehicle capsized because of mechanical failure. The High Court did not find any substance and dismissed the revision petition.
3. The factual position in a nutshell is as follows :
On 23.7.1996 at about 11 a.m. the revision petitioner/accused being the driver of a lorry bearing No. K.L. 13-4363, was proceeding on Hassan-Arsikere Road, near Sankenahalli gate and drove the same in a rash and negligent manner and dashed against a tree, which was by the side of the road and caused death of Shivanna, Bililyamma, Basheer and caused bleeding injuries to C.Ws. 3 to 5, who were travelling in the said lorry sitting in the cabin. Two of them died at the spot and the third person died on the way to the hospital. C.Ws. 3 to 5 sustained grievous injuries. Therefore, the accused was charge-sheeted for offences punishable under Sections 279, 337 and 304-A of Indian Penal Code, 1860. The trial court took congnizance of the offence and registered the case. The prosecution in order to prove the guilt of the accused examined 10 witnesses as P Ws 1 to 10 on its behalf and closed its side. The accused denied the incriminating evidence, which was appearing against him, but he did not choose to examine any witness on his behalf.
4. The stand taken before the High Court was reiterated in this appeal.
5. Learned counsel for the State on the other hand supported the order passed
by the courts below.
6. Coming to the question whether there was any rash and negligence involved,
evidence of the RTO (PW-10) is relevant. He has clearly stated that the
accident did not occur on account of mechanical defects. The evidence of PWs.
1,2, and 6 who were eye-witnesses shows that the vehicle was being driven at a
very high speed. Significantly some of the PWs. were travelling in a lorry.
PW-6 had stated that the vehicle was coming at a very high speed and that the
road was quite wide and there was no traffic at the time of accident. It is to
be noticed that the evidence of the witnesses clearly shows that the vehicle
dashed against a tree and the branches of the tree fell on it. From the
evidence of PW-6 it appears that though it was rainy season but there was no
rain at the relevant point of time.
7. Section 304-A applies to cases where there is no intention to cause death
and no knowledge that the act done in all probability will cause death. The
provision is directed at offences outside the range of Sections 299 and 300 Indian
Penal Code, 1860. The provision applies only to such acts which are rash and
negligent and are directly cause of death of another person. Negligence and
rashness are essential elements under Section 304-A. 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 evil 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 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 it 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 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.
8. 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.
9. The distinction has been very aptly pointed out by Holloway J. in these
words:
"Culpable rashness is acting with the 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. The imputability arises from acting despite the
consciousness. Culpable negligence is acting without the consciousness that the
illegal and mischievous effect will follow, but In circumstances which show
that the actor has not exercised the caution incumbent upon him and that if he
had, he would have had the consciousness. The imputability arises from the
negligence of the civic duty of circumspection." (See In re:
Nidamorti Nagabhusanam 7 Mad. H.C.R. 119)
10. When the factual scenario is considered in the light of evidence of the eye witnesses the inevitable conclusion is that the courts below have rightly found the accused guilty. The sentence of six months' simple imprisonment and the fine imposed does not in any way appear to be irrational.
11. Vehicular accidents resulting in deaths and injuries is spiraling.
12. The Editorial under the heading "Road Traffic Injuries &
fatalities in India - a modern epidemic" in Indian J. Med. Res. 123,
January 2006 contains some interesting observations. The relevant portions read
as follows:
"The United Nations General Assembly adopted a resolution on road safety
on October 26, 2005 which invites Member States to implement the
recommendations of the World Report on Road Traffic Injury Prevention; to
participate in the first United Nations Global Road Safety Week; and to
recognize the third Sunday in November of every year as the World Day of
Remembrance for Road Traffic Victims'. This resolution follows the publication
of The World Report on Road Traffic Injury Prevention by the World Health
Organization in 2004. This report highlights the fact that all over the world
working age people are more likely to suffer hospitalization, permanent
disability and death due to road traffic injuries than most other diseases. The
situation in India is not very different.
About 82,000 persons were killed on Indian roads in 2002. Official statistics
regarding serious injuries are not reliable as they underestimate the actual
number, but it is estimated that the number of people hospitalized may be 15-20
times the number killed. In a do-nothing scenario, it is possible that India
will have 1,20,000 - 1,30,000 road traffic fatalities in the year 2008 and
possibly 1,50,000 - 1,75,000 in 2015. Our vision should aim at reducing the
fatalities to less than 1,00,000 in the short term (2008) and less than 70,000
in the long term (2015).
xxx xxx xxx
Safely measures for the near future
xxx xxx xxx
Motor vehicle occupants: (i) Enforcement of seatbelt use laws countrywide; (ii)
restricting travel in front seat of cars by children has the potential of
reducing injuries dramatically; and (iii) bus and truck occupant injuries,
fatalities, and injuries caused to other road users can be reduced
significantly by enforcing strict observance of speed limit regulations on
highways. Ensuring that bus timetables and truck movement schedules make it
possible for drivers to observe speed limits with ease. Random speed checking
on highways would help ensure such measures.
xxx xxx xxx
Road safety strategies - Long term
Traffic calming and speed control; (i) Aim at implementing speed
control and traffic calming measures in all urban areas and at appropriate
locations on rural highways by altering road design, vehicle monitoring through
intelligent transport systems, and vehicle design by the year 2015. This
measure is likely to give us the maximum savings in terms of lives and serious
injuries; and (ii) segregated lanes for vulnerable road users and buses in
urban areas. Non-motorized transport and buses must be provided segregated
lanes on all major arterial roads in urban areas. India specific designs need
to be developed and phase wise implementation plans drawn up for all cities.
xxx xxx xxx
Vehicle safely: (i) All vehicles sold in India should meet international
crashworthiness standards by 2010; (ii) all buses and trucks should meet
pedestrian impact standards by 2010; (iii) all urban buses to have low floors
and automatic closing doors; (iv) crashworthiness standards must be developed
for all indigenous vehicles by 2010 and implemented by 2012; (v) installation
of Intelligent Transport Systems (ITS) and other modern safety devices for
assisting and controlling drivers; and (vi) driving under the influence of
alcohol and other drugs. A long term strategy to reduce drinking and driving
incidence to less than 10 per cent of all crashes needs to be drawn up for the
next 10 yr. Sensitization of the public to the extent of the problem.
Institution of random roadblocks and checking on urban roads and rural highways.
Ignition interlock on cars."
13. In "Global Road Safety" certain revealing data have also been provided. They read as follows:-
"The Coming Plague of Road Traffic Injuries: A Preventable Burden For
Rich And Poor Countries".
14. Almost 1.2 million people are killed each year and 20-50 million are injured or disabled, most people are unaware that road traffic injuries are a leading cause of death and disability.
15. In developing countries, death rates from vehicle crashes are rising, and disproportionately high in relation to the number of crashes. According to a report published in 2000 Developing and transitional countries cumulatively represent over 85 percent of all road traffic deaths Kenya has nearly 2,000 fatalities per 10,000 crashes, Vietnam has over 3,000 fatalities per 10,000 crashes. 44% of all road traffic deaths occur in the Asia/Pacific area, which only has 16% of the total number of motor vehicles. At 71,495 and 59,927 total deaths, China and India, respectively, had the highest number of road fatalities in the world in 1995.-
Pedestrian deaths represent 62% of all traffic fatalities in Lebanon. In most developing countries vulnerable road users, including pedestrians, bicycle and motor cycle riders, account for the majority of all fatalities.
Eastern European countries represent 6% of motor vehicles, but 11% of
crash fatalities worldwide.
The Latin America/Caribbean region has the second highest crash costs
behind Asia.
16. As developing countries increase vehicle use, road traffic injuries are expected to become the third leading cause of death and disability worldwide by 2020. In developing countries, each vehicle is much more lethal than the vehicles in developed countries, because it most frequently takes the lives not of vehicle occupants, but of vulnerable road users: pedestrians, cyclists. Many developing countries are increasing the rate of motorized vehicle use at up to 18% per year. In India, for example, there has been a 23% increase in the number of vehicles from 1990-1999 and a 60-fold increase is predicted by 2050.
17. The human toll is tragic. Survivors and family members are affected not
only by an immediate death or disability, but sometimes a lifetime of
psychological and physical suffering. Crashes often result in orphans, and some
victims, as young as infants, spend the rest of their lives in medical
facilities.
ECONOMIC IMPACT
18. In addition to the devastating human toll, the economic impact
of road crashes is also enormous. Many of those injured or killed are wage
earners; leaving families destitute and without means of support. Loss of
wages, property damage, and other factors affected by road traffic crashes
represented 4.6% of the gross national product of the United States in 1994. In
developing countries, road traffic crashes represent 3-5% of the GNP. The
estimated annual cost of road traffic crashes in developing countries exceeds
$100 billion (US). This amounts to nearly double the total combined development
assistance these countries receive every year from bilateral and multi-lateral
government organizations. Globally, the estimated annual costs of road crashes
are 500 billion (US).
THIS PROBLEM IS PREVENTABLE
19. We have the tools needed to combat this epidemic. In the developed nations,
proven methods such as enforcement of laws regarding driving under the
influence of alcohol or drugs, reducing speed limits, and requiring seat belts
and restraints have shown significant reduction in traffic fatalities. Road
design and road environment, vehicle design, and road safety standards are also
strategies that successfully address traffic safety. For maximum impact of RTI's,
a systems approach with multiple, scientifically proven prevention techniques
must be employed. Education alone has been shown to be less effective, and
often ineffective.
20. Proven interventions for developed countries require research,
modification, and testing for developing countries. For example, developing
countries face poorly designed and maintained roadways, unsafe vehicles,
drivers under the influence of drugs or alcohol, lack of national policies, and
inadequate enforcement. Success will require significant new resources
supported by sustained political commitment."
21. The inevitable conclusion is that the appeal is sans merit and deserves
dismissal which we direct.