STATE TR. P.S. LODHI COLONY, NEW DELHI v. SANJEEV NANDA

Judgment

: c HELD: 1.1 Accident means an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated. Thus, if the injury/death is caused by an accident, that itself cannot be attributed to D an intention. If inteRtion is proved and death is caused, then it would amount to culpable homicide. [Para 33) [940- G-H; 941-A] Black's Law Dictionary - referred to. E

1.2. In the case at hand, looking to the nature and manner in which accident had taken place, it can safely be held that respondent-accused had no intention to cause death but certainly had the knowledge that his act may result in death. There is nothing to prove that he knew F that a group of persons was standing on the road he was going to pass through. If that be so, there cannot be an intention to cause death or such bodily injury as is likely to cause death. Thus, respondent had committed an offence u/s.304 (Part II) IPC. [Paras 39 and 40] [944-E-H) G Ku/want Rai vs. State of Punjab (1981) 4 SCC 245; Dalbir Singh vs. State of Haryana (2000) 5 SCC 82: 2000 (3) SCR 1000; State of Maharashtra vs. Salman Salim Khan (2004) 1 SCC 525; Alister Anthony Pareira vs. State of H 884 SUPREME COURT REPORTS [2012] 12 S.C.R. A Maharashtra (2012) 2 SCC 648; State of Gujarat vs. Haiderali Kalubhai (1976) 1 SCC 889: 1976 (3) SCR 303; Naresh Giri vs. State of M.P 2008 (1) sec 791: 2001 (11) SCR 987 - referred to. 8

1.3. The accident had occurred solely and wholly on account of rash and negligent driving of BMW car by the respondent, at a high speed, who was also intoxicated at that point of time. This fact has been admitted by the respondent-accused at the appellate stage in the High C Court. For the simple reason that he had already driven almost 16 kms from the place where he had started, to the point where he actually met with the accident without encountering any untoward incident would not go absolutely in favour of the respondent. There is no evidence on record that he had consumed. more liquor It is extremely difficult to assess or judge when liquor would show its effect or would be at its peak. It varies from person to person. The prosecution failed to use either the Breath Analyser or Alco Meter to record a definite finding in this regard. Evidence of the E doctors P.W.10 and P.W.16 shows that certain amount of alcoholic contents was still found on examination of his blood next day. It is a settled principle of law that if something is required to be done in a particular manner, then that has to be done only in that way or not at all. [Paras 26, 27, 28 and 29] [938-G-H; 939-A-G] D on their way also. F Nazir Ahmad v. King Emperor AIR 1936 PC 253 (2) - referred to.

1.4. Soon after hitting one of the victims, accused did G not apply the brakes so as to save at least some of the lives. Since all the seven of them were standing in a group, he had not realized that impact would be so severe that they would be dragged for several feet. Possibility also cannot be ruled out that soon after hitting H STATE TR. P.S. LODHI COLONY NEW DELHI v. SANJEEV NANDA 885 them, respondent, a young boy of 21 years then, might A have gone into trauma and could not decide as to what to do until vehicle came to a halt. He must have then realized the blunder he committed. [Para 31] [940-C-D]

2. Even though in the facts and circumstances of the B case, jail sentence awarded to him may not be just and appropriate the mitigating circumstances tilt heavily in favour of the accused. Therefore, it is appropriate, to maintain the sentence awarded by the High Court, which he has already undergone. No useful purpose would be served by sending the accused to jail once again. C However, this has been held so, looking to very peculiar facts and features of this particular case and it may not be treated as a precedent of general proposition of law on the point, for other cases. [Paras 44 and 45] [945-D-G] D PER K.S. RADHAKRISHNAN, J. (Partly dissenting and Supplementing!: HELD: 1.1. Section 304A IPC carves out a specific offence where death is caused by doing a rash or E negligent act and that act does not amount to culpable homicide not amounting to murder u/s. 299 IPC or murder u/s. 300 IPC. Section 304A excludes all the ingredients of Section 299 or Section 300. [Para 44] [919-A] State of Gujarat v. Haidara/i Ka/ubhai (1976) 1 SCC 889: F 1976 (3) SCR 303; Naresh Giri v. State of M.P. (2008) 1 SCC 791: 2007 (11) SCR 987; Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648; Jagriti Devi v. State of Himacha/ Pradesh (2009) 14 SCC 771: 2009 (10) SCR 167 - relied on. G Andhra Pradesh v. Rayavarapu Punnayya and Anr. (1976) 4 SCC 382: 1977 (1) SCR 601 - referred to.

1.2. In the instant case, it has been brought out in evidence that the accused-respondent was in an H 886 SUPREME COURT REPORTS [2012] 12 S.C.R. A inebriated state, after consuming excessive alcohol, he was driving the vehicle without licence, in a rash and negligent manner in a high speed which resulted in the death of six persons. The accused had sufficient knowledge that his action was likely to cause death and B such an action would, in the facts and circumstances of this case fall under Section 304(11) of the IPC and the trial court has rightly held so and the High Court has committed an error in converting the offence to Section 304A of the IPC. [Para 52] [925-A-B] c

2.1. The key prosecution witnesses PW1, PW2 and PW3 turned hostile. Even though the above mentioned witnesses turned hostile and PW3 was later examined as court witness, when their evidence is read with the D evidence of others as disclosed and expert evidence, the guilt of the accused had been clearly established. [Para 39) [916-B-C] F

2.2. Witness turning hostile is a major disturbing factor faced by the criminal courts in India. Reasons are E many for the witnesses turning hostile, but especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law thereby, eroding people's faith in the system. The evidence of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny G and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. If a court finds that in the process, the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as H a whole with due caution, accept, in the light of the STATE TR. P.S. LODHI COLONY NEW DELHI v. SANJEEV NANDA 887 evidence on the record that part of his testimony which A it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court and they found the accused guilty. [Para 40] [916-E-H; 917-A-B]

ORDER B

1. Delay condoned.

2. Leave granted.

3. In the light of separate judgments pronounced by us today, the judgment and order of conviction passed by Delhi C High Court under Section 304A of the Indian Penal Code (IPC) is set aside and the order of conviction of Trial Court under Section 304 Part II of the l.P.C. is restored and upheld. However, we deem it appropriate to maintain the sentence awarded by the High Court, which the accused has already D undergone.

4. In addition, the accused is put to the following terms: (1) Accused has to pay an amount of Rs.50 lakh (Rupees Fifty lakh) to the Union of India within six months, which will be utilized for providing compensation to the victim of motor accidents, where the vehicle owner, driver etc. could not be traced, like victims of hit and run cases. On default, he will have to undergo simple imprisonment for one year. This amount be kept in a different head to be used for the aforesaid purpose only. (2) The accused would do community service for two years which will be arranged. by the Ministry of Social Justice and Empowerment within two months. On default, he will have to undergo simple imprisonment for two years. The Appeal is accordingly allowed in terms of the judgments and this common order. K.K.T. Appeal Partly allowed. E F G H