1. "Truth is the cherished principle and is the guiding star of the Indian Criminal Justice System. For justice to be done, truth must prevail. Truth is the soul of Justice. The sole idea of Criminal Justice System is to see that justice is done. Justice will be done when no innocent person is punished and the guilty person is not allowed to go scot free." With these golden words of the Apex Court, present appeals deserve consideration.
1.1. The challenge herein by the convict, Appellant is to the judgment and order dated 13.07.2015 delivered by the learned 2nd Additional Sessions Judge, Ahmedabad (Rural) in the Sessions Case No.41 of 2013 ended in convicting the present Appellant for the offences punishable under sections 304(II), 279 and 427 of the Indian Penal Code (IPC herein after) and under sections 177, 184 read with section 134 (1) (b) of Motor Vehicles Act (MV Act herein after) and sentenced him for five years of Rigorous imprisonment under section 304(II)and also imposed fine of Rs.25,000, failing which to undergo one year of simple imprisonment for the offence under section 427, one year of imprisonment and fine of Rs.5000/-(Rupees Five Thousand only), and failing which to undergo simple imprisonment of one month and for the offence under section 279 of the Indian Penal Code to undergo simple imprisonment for six months and fine of Rs.1000 (Rupees One Thousand only) failing which to undergo simple imprisonment of one month with further direction to pay compensation of Rs.5,00,000/-(Five lakh)only to the family of each victim, making it total of Rs.10,00,000/-(Rupees Ten Lakhs only). Though the appellant was convicted under section 177, 184 read with section 134(1)(b) of the M.V. Act, no separate sentence is awarded under these provisions.
2. The State of Gujarat has also preferred Criminal Appeal No. 1016 of 2015 for enhancement of sentence as well as for enhancing the amount of compensation. Again, one of the family members of the victim also had preferred the Revision Application No.374 of 2015 challenging the very judgment and order and also sought enhancement of sentence, which has been withdrawn during the pendency of these appeals as detailed hereinafter.
3. In this judgment, the accused convict shall be addressed as the Appellant and the State of Gujarat as the Respondent hereinafter for the sake of convenience.
A. Factual Martix:
4. Seminal facts sans peripheral details as per the case of prosecution and the charges framed against the Appellant are capsulised as under:
4.1. It is alleged that on 24.02.2013 at around 12 o'clock in the midnight, the Appellant was driving BMW car bearing registration number CH-1-AE-9360 from Pakwan Cross Road towards Premchand Nagar Road, near Judges' Bungalows, at an excessive speed of more than 110 km.per hour, rashly and negligently, although being conscious of the Notification promulgated by the Commissioner of Police, Ahmedabad of requirement of driving a vehicle within a particular speed limit. It is also alleged that he was fully aware that there is a considerable traffic in the said area even at night and yet, at the three roads intersection (T-junction) near "Laxmi Ganthiya Rath", the Appellant thrashed one motor cycle coming from Mansi circle and turning towards Lad society, causing the driver and pillion rider to be thrown 15 feet up in the air and subsequently dragged the same with the car of Appellant, causing the tree to bend and also causing huge damage to the car. Deceased and the pillion rider of the motorcycle both succumbed to the injuries in this accident. Victim Shivam died on the spot and the pillion rider Rahul Patel on 27.02.2013, while under the treatment due to multiple serious injuries. It is further alleged that Appellant did not apply brakes nor tried to help the injured, nor intimated the police authority but had run away from the place of accident, in complete violation of MV Act.
4.2. The First Information Report came to be lodged being the CR.No.I-No.79 of 2013 for the offences punishable under sections 279, 338, 304A of the Indian Penal Code and also for the offences under section 177, 184, 134(1) (b) of the MV Act. Later on, additional charge sheet came to be laid adding the provisions of the Indian Penal Code. To prove the case against the Appellant, the prosecution examined 33 witnesses and produced various documents.
B. Witnesses and Documents
4.3. The list of the witnesses and the documents proved are as follows:
C. Further statement and judgment/order
5. The Court, after recording further statement under section 313 of the Code of Criminal Procedure ("Cr.P.C." for short) where the accused denied entire incriminating evidence of prosecution and thereafter, on extensively hearing both the sides and also on considering the written submissions of the parties, has held guilty the present appellant and convicted him for the offences specified hereinabove with the punishment as mentioned in detail in paragraph No.1. Both the sides are aggrieved by the outcome and therefore, approached this court and on considering their respective submissions, these appeals are admitted of both of the State and that of the convict.
D. Appeals and submissions
6. Extensive and exhaustive hearing took place before this Court where learned Senior Advocate Mr. Yogesh Lakhani appearing with Mr. Maunish Pathak for the appellant has argued for and on behalf of the convict appellant. They have adopted the written submissions tendered before the trial Court to substantiate their version and also had added further that compromise has been arrived at between the appellant and the family members of both the victims Shivam Dave and Rahul Patel. The affidavits of Shri Ghanshyam Madhavlal Patel, father of Rahul Patel and Shri Premshankar Motilal Dave, father of Shivam Dave have been filed. In wake of this compromise, they have been sufficiently compensated and no grievance has been left so far as the family members of the victims are concerned.
7. The first and foremost contention raised by the learned Senior Advocate Mr. Lakhani is to the effect that this is a case where identity of the accused has not been proved beyond reasonable doubt. The onus is always upon the prosecution to prove that and the identification before the police authority has no value in the eyes of law. Without admitting that aspect and while continuing to challenge on legal side in relation to his involvement in the alleged commission of crime, it is urged that when substantial amount of compensation has been given to the families of both the victims, on that count alone, the Court needs to quash and set aside the judgement and order of the trial Court or, in the alternative, to hold that the period undergone by the appellant, being 1 years should be construed as sufficient for the offence allegedly proved. He has relied on various authorities to substantiate his version that the grant of compensation is considered by the Apex Court as sufficient compliance and in view of the actual punishment, when the victim has already undergone 1 years of punishment, the same is urged to be held sufficient compliance of the law. Various judgments sought to be relied upon shall find place hereinafter.
8. On merits, it is urged by the learned Senior advocate that the identification of the appellant in the police station is not sufficient and cannot be permitted under the law. No Test Identification (T.I.) Parade for the purpose of identity of the accused, in the instant case, is conducted. Considering the fact that the photograph of the appellant had been published in the newspaper, identification before the police authority or in the Court has no value in the eyes of law, if TI parade was missed out.
8.1. He relied on the decision of the Apex Court in the case ofSeeni Nainar Mohammed vs. State, represented by Deputy Superintendent of Police, (2017) 13 SCC 685.
8.2. He has further submitted that (P.W.No.11) Mr. Lalit Rajesh Gupta is alleged to have turned hostile to the case of the prosecution after the appellant had been enlarged on bail by the Apex Court on 31.03.2014 in SLP (Cri.) No.1699 of 2014, as per the say of the prosecution. However, no grievance has been raised before the trial Court of any alleged breach of condition or tempering with the witnesses. His positive deposition has not been assailed in the crossexamination.
8.3. He has further urged that reliance is placed on the case registered against the present appellant being CR.No.II-3063 of 2011 with Satellite police station under section 185 of the Motor Vehicles Act on 20.03.2011. The said matter was placed before the Lok Adalat and on imposing fine on the appellant, when he pleaded guilty, the matter had been disposed of. That aspect, cannot be held against him. This was to establish that he has been involved in that case of having driven BMW car in a drunken condition. The First Information Report in relation to this is that on 20.03.2011 between 11:00 to 12:00 p.m. PSI Shri V.R. Chaudhary was on patrolling duty. Driver of BMW car with registration No. CH-1- AE-9360 had reversed his car in a brazen manner and had hit an auto-rickshaw. The police caught the driver, who was found in a drunken state and when inquired, he introduced himself as Vismay Amitkumar Shah, a resident of Mangalya Society, House No.13, Nehrunagar, Satellite. His documents were asked for and he did not possess them, and, therefore, the complaint was lodged for driving the four wheeled vehicle after consumption of liquor. A case was lodged against him under section 185 of the Motor Vehicles Act. This was numbered as Criminal Case No.2898 of 2019, before the Court of learned Judicial Magistrate First Class, and Additional Civil Judge, Mirzapur, Ahmedabad (Rural). This public document was admitted in the evidence and the Court fined him for Rs.500/- and in default three days of imprisonment was imposed. This was in no manner appealed or no preference was made of revision. This not only shows his criminal antecedents but also the factum that he is well versed with the area and the road.
8.4. According to learned counsel, this material is useless so far as the proof of guilt of the appellant is concerned as the same has to be based on the evidence led before the trial Court. Apart from such circumstances, under which in that case, the appellant had pleaded guilty, at the best, it can be used as a bad character of the appellant. The appellant never claimed good character and, therefore, that aspect pales into insignificance. It is further urged that in view of Explanation (2) of section 54 of the Indian Evidence Act, the previous conviction may be relevant as evidence of bad character. However, that bad character itself is no proof of guilt in the present case.
8.5. Yet another submission, which has been fervently made is that when the appellant was granted a regular bail in Special Leave to Appeal (Cri.) No.1699 of 2014, by the Apex Court, the Court had imposed a condition that the appellant will not dispute his identity as the accused in the case. It is the say of the learned counsel that this will not absolve the prosecution to prove the case against the appellant and that too by a cogent proof that the accused and none else was driving the car at the time of the accident while laying down the condition of not to question the identity, even the Apex Court would not have meant that the appellant shall not challenge the vital fact that he was not driving the offending vehicle. Moreover, the First Information Report alleged against the father of the appellant Vismay (Dr. Amit Shah) being CR.No.I-89 of 2013 at Satellite police station on 04.03.2013 for the offence punishable under sections 212, 176 and 177 of the Indian Penal Code, is no proof of guilt against the accused. According to him, the written arguments of the State or that in view of sections 106 and 114 of the Indian Evidence Act, the inference can be drawn that accused has committed an offence. According to learned advocate, section 106 of the Indian Evidence Act explains about the burden of proof. It says that when any fact is specially within the knowledge of any person, burden to prove the fact is upon him. Reliance placed on the decision of the Apex Court in the case ofState of Karnataka vs. Suvarnamma and others, (2015) 1 SCC 323is also misplaced, according to him, as in that case, the death was of the wife, who was occupying the house and there was none else who occupied the house with the spouses and, therefore, the Apex Court held that the accused alone can give the account for the occurrence and, therefore, applying section 106 of the Indian Evidence Act, the Apex Court had expected the accused to offer the explanation, which cannot be equated in the instant case.
9. Following are the decisions in support of his elaborate submissions:-
a)Y. Suresh Babu vs. State of Andra Pradesh, (1987) 2 JT 361.
b)Mahesh Chand vs. State of Rajasthan, (1991) SCC(Cri) 159.
c)Ram Lal and anotehr vs.State of J&K, (1999) 2 SCC 213.
d)Ram Lal and another vs. State of J&K, (1999) 2 SCC 213.
e)Ramphal and others vs State of M.P., (2000) 9 SCC 61.
f)B.S. Joshi and others vs. State of Haryana and another, (2003) 4 SCC 675.
g)Badrilal vs.State of M.P., (2005) 7 SCC 55.
h)Bankat and another vs.State of Maharashtra, (2005) 1 SCC 343.
i)Puttaswamy vs. State of Karnataka and another, (2009) 1 SCC 711.
j)Nikhil Merchant vs. Central Bureau of Investigation and another, (2008) 9 SCC 677.
k)Gian Singh vs. State of Punjab and another, (2012) 10 SCC 303.
l)Gulab Das and others vs. State of Madhya Pradesh, (2011) 10 SCC 765.
m)Sathiyamoorthy and others vs. State, (2014) 13 SCC 52.
n)State of Punjab vs. Saurabh Bakshi,2015 3 Laws(SC) 95.
10. Learned APP Mr. Soni representing the State has made extensively his submissions, oral as well as written. According to him, the Appellant has no business to question the issue of identity. The apex court knowing fully well that there is a likelihood of winning over of the witness, has chosen to grant Liberty to him, pending the trial, however with a specific condition that he shall not question his identity. Having agreed to this condition and enjoyed the liberty, it is not permissible for him to challenge or question that ground now at this stage. According to learned APP, even legally, it is for the party which has the special knowledge, to prove and establish a particular fact. In the instant case, the car being of his ownership, it would have been the Appellant who would have known as to whom he had handed over the keys of the car owned by him. He further submitted that soon after the incident, the convict never fulfilled his legal obligations whereby he either took the victims of road accident to the hospital or intimated the police. He did the act which is wholly unacceptable and unsustainable. He also urged that fingers can be pointed at his drunken driving in the past and on the day when the incident occurred, he had hit another vehicle soon before he dragged the motorcycle. His late surrender destroyed evidence of drunken driving. According to him, his excessive speed and knowledge that this could result into the death of a person when completely prohibited under the law, are the grounds to be held against him and the trial court committed no error which would warrant a different conclusion so far as holding the convict guilty for the offence under section 304(II) of IPC. It is further submitted by the learned APP that the CCTV camera which has caught the entire incident also noted excessive speed of the vehicle and when recreated the incident, the Forensic science laboratory opined that the speed of the vehicle was more than hundred kilometers per hour. This was further confirmed by the dealer of BMW car by organising a demo drive in presence of IO.
10.1. He has relied on the following authorities in support of his submissions:-
a)Alister Anthony Pareira vs. State of Maharashtra, (2012) 2 SCC 648.
b)State through P.S. Lodhi Colony, New Delhi vs. Sanjeev Nanda, (2012) 8 SCC 450.
c)Anvar P.V. vs. P.K. Basheer and others, (2014) 10 SCC 473.
d)Sonu alias Amar vs. State of Haryana, (2017) 8 SCC 570.
e)Shafhi Mohammad vs. State of Himachal Pradesh,2018 JX(SC) 57.
E. Scope and ambit of Appellate Court
11. At the outset, this Court needs to take into consideration the scope and ambit of powers of the appellate Court as well as the law laid down in various matters by the Apex Court and by this Court in this regard, as both convict and the State have preferred the Appeals challenging conviction and sentence, whereas the State has seriously questioned lesser punishment and compensation both.
11.1. Sections 372 and section 377 of the Code of Criminal Procedure are profitably reproduced as under:-
"372. No appeal to lie, unless otherwise provided. No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or any other law for the time being in force.
Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court."
11.2. This provision is specific that except as provided under the Code, appeal shall not lie from any judgment or order, however, recognising the rights of victims, primary and secondary, amendment is brought which permits appeal to the victims against acquittal, conviction for a lesser offence or for inadequate compensation to the very Court where appeal otherwise lies.
11.3. Section 377 of the Code of Criminal Procedure speaks thus:-
"377. Appeal by the State Government against sentence.
(1) Save as otherwise provided in sub- section
(2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.
(2) if such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct] the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.
(3) When an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence."
11.4. The Apex Court in the case ofArun Kumar and another vs. State of U.P., (1989) AIR SC 1445was considering the scope of section 374 of code of criminal procedure to hold that when view taken by a Sessions Judge is found to be manifestly wrong which has led to miscarriage of justice, the High Court is entitled to set aside the acquittal. However, in case ofAjit Singh Thakur Singh and another vs. State of Gujarat, (1981) AIR SC 733, the Apex Court held that when two views are possible and judgment of trial court is found reasonable, the High Court would not be justified in taking a different view, than that of a trial Court. In a case when the appeal is preferred by the State Government against the sentence, the Court is expected to give a reasonable opportunity to the accused and decide the ground of inadequacy and also of enhancement.
11.5. On the strength of the discussion made hereinabove, what can be deduced in relation to the powers of the appellate Court that it has independent powers and needs to evaluate the evidence before it and may reach to its own conclusion on questions of facts and law. If two reasonable conclusions from the very evidence are possible, findings of acquittal need no interference.
11.6. The law is quite clear and it expects the appellate Court to deal with the appeal on merits not by mere consideration of the judgment of the trial Court, but by examining thoroughly the reasoning with the evidence on record so as to satisfy itself that the findings and the reasonings of the trial Court are consistent with the material adduced by the prosecution and others on record. The appellate Court's powers against the acquittal are also extensive as are the powers against the conviction, but the appellate Court should be interfering with the order of acquittal, only as has been well laid down in the case ofLalitkumar Sharma and others vs. Superintendent and Remembrancer of Legal Affairs, Government of West Bengal, (1989) AIR SC 2134.
11.7. The Apex Court, while opining on the role of appellate Court in Criminal Appeal, held in the case ofChandrappa and other vs. State of Karnataka, (2007) CriLJ 2136as under:-
"From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;
"(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
12. A mention, at this juncture of the fact is necessary that one of the victims namely father of Rahul, Shri Ghanshyam Madhavbhai Patel had preferred revision application. The revisional powers of the High Court have been detailed in section 397 read with section 401 of the Code of Criminal Procedure. However, the said Criminal Revision Application No.374/2015 has been permitted to be withdrawn by a detailed separate order dated 21.01.2020.
12.1. Relevant paragraphs of the said Revision Application are reproduced as under:-
"6.This Court had ascertained from the revisionist in person and enquired with regard to the element of coercion or pressure and, in no unclear terms, it has conveyed that without any outside influence or coercion as stated in affidavit, the family members of both the victims had sat with the family members of the respondent No.2 and have chosen to settle their disputes. The compensation given by the respondent's family is also sufficient for the family of victims to sustain themselves, as their young sons have passed away and this has been done as the same is permissible under the law.
6.1. This has been objected to by the State on the ground that the appeal of the State for enhancement and that of the respondent convict are pending and withdrawal of this revision should not have any bearing on such Appeal.
7. This Court notices that the revisional jurisdiction can be exercised by the High Court at the instance of the private complainant.
7.1 Apt would be to reproduce profitably, at this stage, the said provision as under:-
Section 401 in The Code Of Criminal Procedure, 1973
"401. High Court's Powers of revisions.
(1) In the case of any proceeding the record of which has been called for by itself or Which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code tan appeal lies but an application for revision has been made to the High Court by any person and the High Court Is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice"
8. Against the order of acquittal, the private complainant can move for revisional jurisdiction before the High Court, where the trial Court has not regarded admissible evidence adduced by the prosecution or where it has wrongly denied the evidence, which prosecution was desirous of producing or where the trial court had no jurisdiction and acquitted the accused or where by considering irrelevant material, the trial Court/the first appellate Court has decided the matter as held by the Apex Court in the case ofSheetala Prasad and others vs. Sri Kant and another, (2010) AIR SC 1140 = (2010)2 SCC 190.
9. It is a trite law that the revisional jurisdiction, when is to be exercised involving the private complainant, it should not be done lightly , particularly against the order of acquittal and only in exceptional cases, in the interest of public justice for correction of manifest illegality or prevention of course of miscarriage of justice, the Court needs to interfere, as held by the Apex Court in the case ofKaptan Singh and others vs. State of Madhya Pradesh and another, 1997 4 SCC 185.
10. Revisional jurisdiction since is not required to be exercised by this Court on account of request made by the learned counsel for the Revisionist, ambit and scope of revision deserves no further dilation.
11. Considering the submission of both the sides, on the strength of the affidavit and submission made by the learned advocates appearing for the revisionist and noticing that the revisionist is not inclined to proceed further with the revision, which is meant for enhancement of sentence, no private party can be forced to continue its litigation, without, in any manner, affecting the pending appeals of the respondent convict and that of the State, Revision Application is permitted to be withdrawn, since the same is not pressed.
11.1 While so noting, it is also being clarified that the request made by Mr. Lakhani, learned Senior Advocate to firstly decide the aspect of compoundability, in wake of compromise between the families of victim and respondent No.2, without entering into the merits, is not being acceded to. His request to give detailed reasons for such denial to decide the said issue on a preliminary basis along with the judgement of appeal is, however, acceded to."
F. Compoundability and its effect on sentence
13. What is required at this juncture is to consider firstly the request of compoundability on account of amicable settlement between the private parties, namely, appellant and families of victims, which resulted into withdrawal of revision on payment of substantial amount of compensation. It is urged that without entering into merits, the Court may modify and reduce the sentence.
13.1. The detailed submissions made by both the sides to quash and set aside the conviction on the ground of payment of compensation to the victims, which they accepted voluntarily and chose not to press the revision application, deserve consideration.
13.2. As noted above, according to learned Senior Advocate Mr. Lakhani appearing with Mr. Maunish Pathak for the appellant, the law is well settled and the appellant since has already undergone 1 years of imprisonment, in wake of the compromise arrived at with the victims' families, the Court need not enter into the merits of the matter, as they have also no objection to the period undergone being construed as sufficient for appellant, the same be decided at the outset.
13.3. Mr. Hardik Soni, learned Additional Public Prosecutor has strongly objected to the submissions put forth by learned Senior Advocate Mr.Lakhani for the appellant, on the ground that it was by choice that the appellant and his family has paid the compensation, which also is requirement of the law. However, that, in no manner, can be used as a mitigating circumstance, nor would that be the ground for the Court to quash and set aside the conviction.
14. In the Case of Alister Anthony Pareira (supra), the question that arose for consideration of the Apex Court under section 304 Part-I and Part-II and 304A, 299, 336, 337, 338 of the Indian Penal Code, was a case of death caused for rash and negligent driving of Motor Vehicle. The Court holds that the act that is likely to cause death can be attributed to drunk driver driving motor vehicle rushing on high speed. The Court held that as section 304 requires, at least, some element of voluntariness in the acts or omission concerned to constitute offence there under while under section 279, 304A and 336 to 338 are premised entirely on negligent i.e. non-voluntary acts or omissions. Charges under section 304 Part-II and 338 are not mutually destructive and can coexist in a case of a single rash or negligent act done with knowledge of likelihood of its dangerous consequences. Charging of offender under section 304 Part-II, 337 and 338 for the same act also is not barred.
14.1. It was a case of car running into the pavement and killing seven persons and causing injuries to eight persons between 3:45 a.m. and 4:00 am. At the east side of Carter road, Bandra (West), Mumbai in the early hours of 12.11.2006. The appellant Alister Anthony Pereira was at wheels. He has been convicted for the offence under section 304 Part-II, 338 and 337 of the Indian Penal Code. The case against the appellant was that repairs and construction work of Carter Road, Bandra (West), was carried out by New India Construction Company. Labourers were engaged for executing the work. Temporary sheds(huts) were put up for residence of labourers on the pavement. In the night of 11.11.2006 and 12.11.2006, the labourers were asleep in the sheds of their huts on the pavement. The appellant while driving his car (Corolla) rashly and negligently between 3:45 a.m. and 4:a.m. rammed the car over the pavement and caused death of seven persons and injuries were caused to eight persons. He was found to have consumed alcohol. A liquor bottle was recovered from his car and on his medical examination, he was found to have consumed ethyl alcohol as there were .112% w/v liquor in his blood. He was familiar with the area being the resident of Carter Road.
14.2. The prosecution proved its charges on the strength of the oral as well as documentary evidence and convicted the appellant for the offence punishable under section 304A and 337 of the Indian Penal Code. He was sentenced to suffer simple imprisonment of 02 years with fine of Rs.5 lakhs for the offence under section 304A and in default to suffer simple imprisonment of 01 month.
14.3. The State of Maharashtra preferred Criminal Appeal under section 378 (3) of the Code challenging the acquittal of the offence under section 304 Part-II and 338 of the Indian Penal Code. It also had sought enhancement of sentence awarded to the appellant for the offence under section 304 A and 337 of the Indian Penal Code.
14.4. In this backdrop, the Apex Court answered the questions in the following manner:-
"25. On the contentions of the learned senior counsel for the appellant and the counsel for the respondent, the following questions arise for our consideration :
(I) Whether indictment on the two charges, namely, the offence punishable under Section 304 Part II Indian Penal Code and the offence punishable under Section 338 Indian Penal Code is mutually destructive and legally impermissible? In other words, whether it is permissible to try and convict a person for the offence punishable under Section 304 Part II Indian Penal Code and the offence punishable under Section 338 Indian Penal Code for a single act of the same transaction?
(ii) Whether by not charging the appellant of 'drunken condition' and not putting to him the entire incriminating evidence let in by the prosecution, particularly the evidence relating to appellant's drunken condition, at the time of his examination under Section 313 of the Code, the trial and conviction of the appellant got affected?
(iii) Whether prosecution evidence establishes beyond reasonable doubt the commission of the offences by the appellant under Section 304 Part II, IPC, Section 338 Indian Penal Code and Section 337 Indian Penal Code?
(iv) Whether sentence awarded to the appellant by the High Court for the offence punishable under Section 304 Part II Indian Penal Code requires any modification?"
15. In the case of Sanjeev Nanda (supra), the facts shorn of unnecessary details as unfolded by the prosecution before the Apex Court are that on intervening night of 09.01.1999/ 10.01.1999, a motor occident took place involving BMW car. The vehicle was driven by the respondent. It was coming from Nizamuddin side and was proceedings towards Lodhi road. Seven persons, were standing on road at the corner where Lodhi road starts. At about 4:00 a.m. there were two other person, who were sitting.
15.1. As per the case of the prosecution, Mr. Manoj Malik started from his house to leave his friends at Nizamuddin Railway station on foot. When they reached the petrol pump of Loadhi Road, three police officials of the checking squad had stopped them and started checking. In the mean time, a BMW car came rashly and negligently from Nizamuddin side at high speed and dashed violently against them. The impact was so great and severe that they flew in the air and fell on the bonnet and windscreen of the car. Some of them rolled down and came beneath the car. The accused lost control of the vehicle on account of this and vehicle swerved to the right side of the road and ultimately hit the central verge. The car finally stopped after hitting the central verge at some distance. Injured persons were shouting and crying for help, but the respondent ignored them and drove away the car at high speed towards Dayal Singh College, even though there were still some persons beneath the car. Six persons were killed, one of them was severely injured.
15.2. In this background, it was argued by the prosecution that the respondent was not holding any valid Indian licence to drive a vehicle in India. He was driving BMW in excessive speed in a rash and negligent manner. His negligence was coupled with intoxication and when he knew that the vehicle had crushed persons and they were underneath his car, he continued to drive. The prosecution, therefore, urged that the High Court committed an error in not holding the respondent guilty under section 304 Part-II of the Indian Penal Code.
15.3. The respondent was aged 21 years and was prosecuting his course in a foreign country. He already had undergone sentence of 02 years awarded by the High Court. He had got married and was also blessed with daughter. At the time when the matter came up before the Apex Court, his behaviour in the jail was found good. The affidavit to that effect was also produced. The defence was also taken of the poor visibility due to fog, as it was a cold wintry night. The victims of the families were already paid Rs. 65 lakhs compensation i.e. Rs.10 lakhs to each family and Rs. 5 lakhs to the inured. Therefore, the Apex Court was requested not to sentence him further. The Court considered the issue of drunken driving and the charges were laid under section 185 of the Motor Vehicles Act and section 85 of the Indian Penal Code.
15.4. Relevant paragraphs of the said decision are reproduced as under:-
"79. Section 185 of the M.V. Act is extracted herein below:
"Section 185 - Driving by a drunken person or by a person under the influence of drugs Whoever, while Driving, or attempting to drive, a motor vehicle,-
(a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser, or
(b) is under this influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both.
Explanation. -For the purposes of this section, the drug or drugs specified by the Central Government in this behalf, by notification in the Official Gazette, shall be deemed to render a person incapable of exercising proper control over a motor vehicle."
80. Section 203 of the MV Act deals with Breath Tests. The relevant portion for our purpose is given below:
"203. Breath tests.- (1) A police officer in uniform or an officer of the Motor Vehicles Department, as may be authorized in this behalf by that Department, may require any person driving or attempting to drive a motor vehicle in a public place to provide one or more specimens of breath for breath test there or nearby, if such police officer or officer has any reasonable cause to suspect him of having committed an offence under section 185:
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(4) If a person, required by a police officer under sub-section (1) or sub-section (2) to provide a specimen of breath for a breath test, refuses or fails to do so and the police officer has reasonable cause to suspect him of having alcohol in his blood, the police officer may arrest him without warrant except while he is at a hospital as an indoor patient.
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81. Section 205 deals with presumption of unfitness to drive which reads as follows:
"205. Presumption of unfitness to drive.- In any proceeding for an offence punishable under section 185 if it is proved that the accused when requested by a police officer at any time so to do, had refused, omitted or failed to consent to the taking of or providing a specimen of his breath for a breath test or a specimen of his blood for a laboratory test, his refusal, omission or failure may, unless reasonable cause therefor is shown, be presumed to be a circumstance supporting any evidence given on behalf of the prosecution, or rebutting any evidence given on behalf of the defence, with respect to his condition at that time."
82. The accused, in this case, escaped from the scene of occurrence, therefore, he could not be subjected to Breath Analyzer Test instantaneously, or take or provide specimen of his breath for a breath test or a specimen of his blood for a laboratory test. Cumulative effect of the provisions, referred to the above, would indicate that the Breath Analyzer Test has a different purpose and object. The language of the above sections would indicate that the said test is required to be carried out only when the person is driving or attempting to drive the vehicle. The expressions "while driving" and "attempting to drive" in the above sections have a meaning "in praesenti". In such situations, the presence of alcohol in the blood has to be determined instantly so that the offender may be prosecuted for drunken driving. A Breath Analyzer Test is applied in such situations so that the alcohol content in the blood can be detected. The breath analyzer test could not have been applied in the case on hand since the accused had escaped from the scene of the accident and there was no question of subjecting him to a breath analyzer test instantaneously. All the same, the first accused was taken to AIIMS hospital at 12.29 PM on 10.01.1999 when his blood sample was taken by Dr. Madulika Sharma, Senior Scientific Officer (PW16). While testing the alcohol content in the blood, she noticed the presence of 0.115% weight/volume ethyl alcohol. The report exhibited as PW16/A was duly proved by the Doctor. Over and above in her cross-examination, she had explained that 0.115% would be equivalent to 115 mg per 100 ml of blood and deposed that as per traffic rules, if the person is under the influence of liquor and alcohol content in blood exceeds 30 mg per 100 ml of blood, the person is said to have committed the offence of drunken driving.
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84. Evidence of the experts clearly indicates the presence of alcohol in blood of the accused beyond the permissible limit, that was the finding recorded by the Courts below. Judgments referred to by the counsel that if a particular procedure has been prescribed under Sections 185 and 203, then that procedure has to be followed, has no application to the facts of this case. Judgments rendered by the House of Lords were related to the provision of Road Safety Act, 1967, Road Traffic Act, 1972 etc. in U.K. and are not applicable to the facts of this case.
85. We are in this case not merely dealing with a traffic violation or a minor accident, but an accident where six human beings were killed. we find no relevance in the argument that the accused was coming from a distance of 16 kms. before the accident, causing no untoward incident and hence it is to be presumed that he was in a normal state of mind. First of all, that statement is not supported by evidence apart from the assertion of the accused. Assuming so, it is a weak defence, once it is proved that the person had consumed liquor beyond the prescribed limit on scientific evidence. This court inKurban Hussain v. State, (1965) AIR SC 1616approved the plea that simply because of the fact that no untoward incident had taken place prior to the occurrence of the accident, one cannot infer that the accused was sober and not in a drunken state. In the instant case, the presence of alcohol content was much more (i.e. 0.115%) than the permissible limit and that the accused was in an inebriated state at the time of accident due to the influence of liquor and in the accident, six human lives were lost.
86. Drunken driving has become a menace to our society. Everyday drunken driving results in accidents and several human lives are lost, pedestrians in many of our cities are not safe. Late night parties among urban elite have now become a way of life followed by drunken driving. Alcohol consumption impairs consciousness and vision and it becomes impossible to judge accurately how far away the objects are. When depth perception deteriorates, eye muscles lose their precision causing inability to focus on the objects. Further, in more unfavourable conditions like fog, mist, rain etc., whether it is night or day, it can reduce the visibility of an object to the point of being below the limit of discernibility. In short, alcohol leads to loss of coordination, poor judgment, slowing down of reflexes and distortion of vision.
87. Punishment meted out to a drunken driver, is at least a deterrent for other such persons getting away with minor punishment and fine. Such incidents are bound to increase with no safety for pedestrians on the roads. The contention raised by learned senior counsel that the accused was not under the influence of liquor or beyond the limit prescribed under the M.V. Act and he was in his senses and the victims were at fault being on the middle of the road, is without any substance and only to be rejected.
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Driving without licence
90. Learned senior counsel, appearing for the accused, submitted that the first accused knows driving, though he does not have a licence duly issued by a licencing authority under the M.V. Act, 1988. Learned senior counsel submitted that the accused had driven the vehicle in America and European countries and possesses a valid driving licence issued by the licencing authority of a State in the United States at the relevant point of time. Learned senior counsel, therefore, pointed out that the mere fact that he was not holding a driving licence would not mean that he does not know driving.
91. Learned senior counsel also submitted that there is no presumption in law that a person who has no licence does not know driving. Further, it was also pointed out that driving without a licence is an offence under M.V. Act and not under the Penal Code, unless and until it is proved that a person was driving a vehicle in a rash and negligent manner so as to attract Section 304A of the IPC. Admittedly, the first accused was not having an Indian licence at the time of accident though he had produced a licence issued by the Licencing Authority from a State in the United States. A person who is conversant in driving a motor vehicle in the United States and European countries may not be familiar with the road conditions in India. In India, the driver is always on the defensive due to various reasons. Pedestrians in India seldom use footpaths nor respect Zebra lines or traffic lights, two wheelers, auto-rickshaws, cyclists and street-vendors are common sights on Indian roads. A driver in Indian roads should expect the unexpected always, therefore, the plea that the accused has an American driving licence is not an answer for driving in Indian roads unless it is recognized in India or that person is having a driving licence issued by the Licensing Authority in India. We have to necessarily draw an inference that the accused was not conversant in driving a vehicle on the Indian roads in the absence of an Indian licence at the time of the accident. Therefore, the judgment of this Court inSuleman Rahiman Mulani and Anr. V. State of Maharashtra, (1968) AIR SC 829that there is no presumption of law that a person who possesses only a learning licence or possesses no licence at all, does not know driving is inapplicable to the facts of this case. In any view, in the instant case, we have already found that the accused was in an inebriated state, therefore, the question whether he knew driving is not of much consequence. Duty of Driver, Passengers and Bystanders
92. We have found on facts that the accused had never extended any helping hand to the victims lying on the road and fled from the scene. Section 134 of M.V. Act, 1988 casts a duty on a driver to take reasonable steps to secure medical attention for the injured person. Section 134 of M.V. Act, 1988 reads as follows:
"134. Duty of driver in case of accident and injury to a person. - When any person is injured or any property of a third party is damaged, as a result of an accident in which a motor vehicle is involved, the driver of the vehicle or other person in charge of the vehicle shall -
(a) unless it is not practicable to do so on account of mob fury or any other reason beyond his control, take all reasonable steps to secure medical attention for the injured person, by conveying him to the nearest medical practitioner or hospital, and it shall be the duty of every registered medical practitioner or the doctor on the duty in the hospital immediately to attend to the injured person and render medical aid or treatment without waiting for any procedural formalities, unless the injured person or his guardian, in case he is a minor, desired otherwise;
(b) give on demand by a police officer any information required by him or, if no police officer is present, report the circumstances of the occurrence, including the circumstances, if any, or not taking reasonable steps to secure medical attention as required under clause (a), at the nearest police station as soon as possible, and in any case within twenty-four hours of the occurrence;
(c) give the following information in writing to the insurer, who has issued the certificates of insurance, about the occurrence of the accident, namely :-
(i) insurance policy number and period of its validity;
(ii) date, time and place of accident;
(iii.) particulars of the persons injured or killed in the accident;
(iv.) name of the driver and the particulars of his driving licence.
Explanation. - For the purposes of this section, the expression "driver" includes the owner of the vehicle."
93 Section 187 of the M.V. Act, 1988 provides for punishment relating to accident, which reads as follows:
"187. Punishment for offence relating to accident. - Whoever fails to comply with the provisions of clause (c) of sub- section (1) of section 132 or of section 133 or section 134 shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both or, if having been previously convicted of an offence under this section, he is again convicted of an offence under this section, with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
94. Of course, no proceedings were instituted against the accused in the case on hand invoking the above mentioned provisions, however, the unfortunate accident in which six persons were killed at the hands of the accused, prompted us to express our deep concern and anguish on the belief that, at least, this incident would be an eye-opener and also food for thought as to what we should do in future when such situations arise.
95. This Court inPt. Parmanand Katara v. Union of India (UOI) and Ors., (1989) 4 SCC 286pointed out that it is the duty of every citizen to help a motor accident victim, more so when one is the cause of the accident, or is involved in that particular accident. Situations may be there, in a highly charged atmosphere or due to mob fury, the driver may flee from the place, if there is a real danger to his life, but he cannot shirk his responsibility of informing the police or other authorized persons or good samaritans forthwith, so that human lives could be saved. Failure to do so, may lead to serious consequences, as we see in the instant case. Passengers who are in the vehicle which met with an accident, have also a duty to arrange proper medical attention for the victims. Further they have equal responsibility to inform the police about the factum of the accident, in case of failure to do so they are aiding the crime and screening the offender from legal punishment.
96. No legal obligation as such is cast on a bystander either under the Motor Vehicle Act or any other legislation in India. But greater responsibility is cast on them, because they are people at the scene of the occurrence, and immediate and prompt medical attention and care may help the victims and their dear ones from unexpected catastrophe. Private hospitals and government hospitals, especially situated near the Highway, where traffic is high, should be equipped with all facilities to meet with such emergency situations. Ambulance with all medical facilities including doctors and supporting staff should be ready, so that, in case of emergency, prompt and immediate medical attention could be given. In fact, this Court inPaschim Banga Khet Mazdoor Samiti and Ors. V. State of West Bengal and Ors., (1996) 4 SCC 37, after referring to the report of Justice Lilamoy Ghose, a retired Judge of the Calcutta High Court, gave various directions to the Union of India and other States to ensure immediate medical attention in such situations and to provide immediate treatment to save human lives. Law Commission in its 201st report dated 31.8.2006 had also made various recommendations, but effective and proper steps are yet to be taken by Union of India and also many State Governments. We call for the immediate attention of the Union of India and other State Governments, if they have not already implemented those directions, which they may do at the earliest.
97. Seldom, we find that the passing vehicles stop to give a helping hand to take the injured persons to the nearby hospital without waiting for the ambulance to come. Proper attention by the passing vehicles will also be of a great help and can save human lives. Many a times, bystanders keep away from the scene, perhaps not to get themselves involved in any legal or court proceedings. Good Samaritans who come forward to help must be treated with respect and be assured that they will have to face no hassle and will be properly rewarded. We, therefore, direct the Union of India and State Governments to frame proper rules and regulations and conduct awareness programmes so that the situation like this could, to a large extent, be properly attended to and, in that process, human lives could be saved."
15.5. The Court also considered sections 304 Part-II, 304A of the Indian Penal Code.
Relevant paragraphs are reproduced as under:-
"Section 304(II) or Section 304A of the IPC
102. We may in the above background examine whether the offence falls under Section 304(II) of the IPC or Section 304A of the IPC from the facts unfolded in this case. Shri Raval, appearing for the State, as already indicated, argued that the facts of this case lead to the irresistible conclusion that it would fall under Section 304(II) of the IPC. Learned counsel pointed out that the accused after having noticed that the speeding car had hit several persons, left the spot without giving any medical aid or help knowing fully well that his act was likely to cause death. Learned counsel pointed out that in any view, it would at least fall under Section 304(II) of the IPC.
103. Shri Ram Jethmalani, on the other hand, submitted that Section 304(II), will never apply in a case of this nature, especially in the absence of any premeditation. Learned senior counsel submitted that the accused entertained no knowledge that his action was likely to cause death assuming he was rash and negligent in driving the car. Learned senior counsel pointed out that the offence of culpable homicide presupposes an intention or knowledge and the intention must be directed either deliberately to put an end to human life or to some act which to the knowledge of the accused is likely to eventuate in putting an end to human life. Learned senior counsel submitted that the accused had no such knowledge either before or immediately after the accident.
104. First we will examine the scope of section 304A of the IPC which reads as follows:
"304A. Causing death by negligence.-
Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." On reading the above mentioned provision, the following requirements must be satisfied before applying this section:
i) Death must have been caused by the accused;
ii) Death caused by rash or negligent act;
iii) Rash and negligent act must not amount to culpable homicide.
Section 304A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide not amounting to murder under Section 299 or murder under Section 300. Section 304A excludes all the ingredients of Section 299 or Section 300.
105. The above mentioned section came up for consideration in Haidarali Kalubhai (supra) wherein this Court held as follows:
"Section 304A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide u/s 299 IPC or murder u/s 300 IPC. If a person willfully drives a motor vehicle in the midst of a crowd and thereby causes death to some persons, it will not be a cause of mere rash and negligent driving and the act will amount to culpable homicide. Each case will, therefore, depend upon the particular facts established against the accused."
106. Before elaborating and examining the above principle laid down by this court, we will refer to sections 299, 300, 304A of the IPC.
Section 299 A person commits culpable homicide if the act by which the death is caused is done
(c) with the knowledge that he is likely to cause death. Section 300 Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done
(4) with the knowledge that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
"304. Punishment for culpable homicide not amounting to murder.- Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
107. Section 299 of the IPC defines culpable homicide as an act of causing death (i) with the intention of causing death; (ii) with the intention of causing some bodily injury as is likely to cause death; and (iii) with the knowledge that such act is likely to cause death. The first and second clauses of the section refer to intention apart from knowledge and the third clause refers to knowledge apart from intention. "Intention" and "knowledge" postulate the existence of positive mental attitude. The expression 'knowledge' referred to in section 299 and section 300 is the personal knowledge of the person who does the act. To make out an offence punishable under Section 304(II) of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew such act of his is likely to cause death.
108. Section 304A, as already indicated, carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide not amounting to murder under Section 299 or murder under Section 300. The scope of the above mentioned provisions came up for consideration before this court in the judgment ofNaresh Giri v. State of M.P., (2008) 1 SCC 791; wherein this court held as follows:
"Section 304A IPC 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 IPC. Section 304A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304A."
109. In a recent judgment, in Alister Anthony Pareira (supra), this Court after surveying a large number of judgments on the scope of Sections 304A and 304(II) of the IPC, came to the conclusion that in a case of drunken driving resulting in the death of seven persons and causing injury to eight persons, the scope of Sections 299, 300 and 304(I) and (II) of the IPC stated to be as follows:
"Each case obviously has to be decided on its own facts. In a case where negligence or rashness is the cause of death and nothing more, Section 304A may be attracted but where the rash or negligent act is preceded with the knowledge that such act is likely to cause death, Section 304 Part II Indian Penal Code may be attracted and if such a rash and negligent act is preceded by real intention on the part of the wrong doer to cause death, offence may be punishable under Section 302 Indian Penal Code."
110. On facts, the court concluded as follows:
"The facts and circumstances of the case which have been proved by the prosecution in bringing home the guilt of the accused under Section 304 Part II Indian Penal Code undoubtedly show despicable aggravated offence warranting punishment proportionate to the crime. Seven precious human lives were lost by the act of the accused. For an offence like this which has been proved against the Appellant, sentence of three years awarded by the High Court is too meagre and not adequate but since no appeal has been preferred by the State, we refrain from considering the matter for enhancement. By letting the Appellant away on the sentence already undergone i.e. two months in a case like this, in our view, would be travesty of justice and highly unjust, unfair, improper and disproportionate to the gravity of crime. It is true that the Appellant has paid compensation of Rs. 8,50,000/- but no amount of compensation could relieve the family of victims from the constant agony. As a matter of fact, High Court had been quite considerate and lenient in awarding to the Appellant sentence of three years for an offence under Section 304 Part II Indian Penal Code where seven persons were killed."
111. In Jagriti Devi v. State of Himachal Pradesh a Bench of this Court held that it is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death.
112. One of the earlier decisions of this Court inState of Andhra Pradesh v. Rayavarapu Punnayya and Another, (1976) 4 SCC 382, this Court succinctly examined the distinction between Section 299 and Section 300 of the IPC and in para 12 of the Judgment and held as follows:
"12. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the 1st part of Section 304. Then, there is 'culpable homicide of the third degree.' This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section 304."
Referring to para 14 of that judgment, the Court opined that the difference between Clause (b) of Section 299 and Clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. The word "likely" in Clause (b) of Section 299 conveys the sense of 'probable' as distinguished from a mere possibility. The words "bodily injury...sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury having regard to the ordinary course of nature.
113. Ultimately, the Court concluded as follows:
"From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder,' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code is reached. This is [the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on. whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes, within any of the Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Penal Code."
114. The principle mentioned by this court in Alister Anthony Pareira (supra) indicates that the person must be presumed to have had the knowledge that, his act of driving the vehicle without a licence in a high speed after consuming liquor beyond the permissible limit, is likely or sufficient in the ordinary course of nature to cause death of the pedestrians on the road. In our view, Alister Anthony Pareira (supra) judgment calls for no reconsideration. Assuming that Shri Ram Jethmalani is right in contending that while he was driving the vehicle in a drunken state, he had no intention or knowledge that his action was likely to cause death of six human beings, in our view, at least, immediately after having hit so many human beings and the bodies scattered around, he had the knowledge that his action was likely to cause death of so many human beings, lying on the road unattended. To say, still he had no knowledge about his action is too childish which no reasonable man can accept as worthy of consideration. So far as this case is concerned, it has been brought out in evidence that the accused was in an 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 such an action would, in the facts and circumstances of this case fall under Section 304(II) 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."
15.6. The Court, after holding that the High Court committed error in converting the punishment by the trial Court under section 304 Part-II, section 304A of the Indian Penal Code, considered as to what could be appropriate sentence in such cases.
15.7. Relevant paragraphs from the decision of Sanjeev Nanda(supra) deserve reproduction on the aspect of sentencing as under:-
119. We have to decide, after having found on facts, that this case would fall under Section 304 Part II, what will be the appropriate sentence. Generally, the policy which the court adopts while awarding sentence is that the punishment must be appropriate and proportional to the gravity of the offence committed. Law demands that the offender should be adequately punished for the crime, so that it can deter the offender and other persons from committing similar offences. Nature and circumstances of the offence; the need for the sentence imposed to reflect the seriousness of the offence; to afford adequate deterrence to the conduct and to protect the public from such crimes are certain factors to be considered while imposing the sentence.
120. The imposition of sentence without considering its effect on the social order in many cases is in reality a futile exercise. In our view, had the accused extended a helping hand to the victims of the accident, caused by him by making arrangements to give immediate medical attention, perhaps lives of some of the victims could have been saved. Even after committing the accident, he only thought of his safety, did not care for the victims and escaped from the site showing least concern to the human beings lying on the road with serious injuries. Conduct of the accused is highly reprehensible and cannot be countenanced, by any court of law.
121. The High Court, in our view, has committed an error in converting the conviction to Section 304A of the IPC from that of 304(II) IPC and the conviction awarded calls for a re-look on the basis of the facts already discussed, otherwise this Court will be setting a bad precedent and sending a wrong message to the public. After having found that the offence would fall under Section 304(II) IPC, not under Section 304A, the following sentence awarded would meet the ends of justice, in addition to the sentence already awarded by the High Court.
Community Service for Avoiding Jail Sentence
122. Convicts in various countries, now, voluntarily come forward to serve the community, especially in crimes relating to motor vehicles. Graver the crime greater the sentence. But, serving the society actually is not a punishment in the real sense where the convicts pay back to the community which he owes. Conduct of the convicts will not only be appreciated by the community, it will also give a lot of solace to him, especially in a case where because of one's action and inaction, human lives have been lost.
123. In the facts and circumstances of the case, where six human lives were lost, we feel, to adopt this method would be good for the society rather than incarcerating the convict further in jail. Further sentence of fine also would compensate at least some of the victims of such road accidents who have died, especially in hit and run cases where the owner or driver cannot be traced. We, therefore, order as follows:
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.
124. The Appeal is allowed to the aforesaid extent and the accused is sentenced as above."
16. In view of the ratios laid down in both the cases discussed above, it is quite clear that offence punishable under sections 304 Part-II of the Indian Penal Code and the offence under section 338 are not mutually destructive and legally permissible for a single act of the same transaction.
16.1. The person can be punished and convicted under section 304 Part-II of the Indian Penal Code and the offence punishable under section 338 of the Indian Penal Code.
16.2. The Apex Court, while considering such request, examined the sentencing in the case Alister Anthony Pareira (supra) of policy and held that the number of provisions in sentencing the crime, are well entranched in criminal jurisprudence.
"87. In the case of Krishnappa, though this Court was concerned with the crime under Section 376 IPC but with reference to sentencing by courts, the Court made these weighty observations :
"18. ........ Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. There are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum on the respondent. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. ........."
88. In the case of Dalbir Singh, 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."
89. Then while dealing with Section 4 of the Probation of Offenders Act, 1958, it was observed that Section 4 could be resorted to when the court considers the circumstances of the case, particularly the nature 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 extent 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.........."
90 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 visiting 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 automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator 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 of any human being; or even if such death ensues he might not be convicted of the offence; and lastly, that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles."
91. In State of M.P. v. Saleem alias Chamaru & Anr.17, while considering the case under Section 307 IPC this Court stated in paragraphs 6-10 (pages 558-559) of the Report as follows :
"6. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of 2005 (5) SCC 554 the offence and the manner in which it was executed or committed, etc. . . . . . . . . . .
7. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court. Such act of balancing is indeed a difficult task. It has been very aptly indicated inDennis Councle McGautha v. State of California (402 US 183)that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
8. The object should be to protect society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
9. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.
10. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong.
The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal"."
92. In the case of Shailesh Jasvantbhai11, the Court referred to earlier decisions inDhananjoy Chatterjee alias Dhana v. State of W.B., (1994) 2 SCC 220,Ravji alias Ram Chandra v. State of Rajasthan, (1996) 2 SCC 175,State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13,Surjit Singh v. Nahara Ram & Anr., (2004) 6 SCC 513State of M.P. v. Munna Choubey. In Ravji, this Court stated that the court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".
93. In Manish Jalan, this Court considered Section 357 of the Code in a case where the accused was found guilty of the offences punishable under Sections 279 and 304A IPC. After noticing Section 357, the Court considered earlier decision of this Court in Hari Singh v. Sukhbir Singh & Ors.23 wherein it was observed,
"10..'it may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system".
94. Then the court noticed another decision of this Court in Sarwan Singh & Ors. v. State of Punjab in which it was observed that in awarding compensation, it was necessary for the court to decide if the case was a fit one in which compensation deserved to be granted.
95. Then the court considered another decision of this Court in Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. & Anr. wherein the court held at Page 545 of the Report as under:
"38. The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefore in mind. It may be compensating the person in one way or the other. The amount of compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of the accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way, may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but sub-section (3) of Section 357 does not impose any such limitation and thus, power there under should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a Judge."
Having regard to the above legal position and the fact that the mother of the victim had no grievance against the appellant therein and she prayed for some compensation, this Court held that a lenient view could be taken in the matter and the sentence of imprisonment could be reduced and, accordingly, reduced the sentence to the period already undergone and directed the appellant to pay compensation of Rs. One lakh to the mother of the victim.
96. World Health Organisation in the Global Status Report on Road Safety has pointed out that speeding and drunk driving are the major contributing factors in road accidents. According to National Crime Records Bureau (NCRB), the total number of deaths due to road accidents in India every year is now over 1,35,000. NCRB Report also states drunken driving as a major factor for road accidents. Our country has a dubious distinction of registering maximum number of deaths in road accidents. It is high time that law makers revisit the sentencing policy reflected in Section 304A IPC.
97. The facts and circumstances of the case which have been proved by the prosecution in bringing home the guilt of the accused under Section 304 Part II IPC undoubtedly show despicable aggravated offence warranting punishment proportionate to the crime.
Seven precious human lives were lost by the act of the accused. For an offence like this which has been proved against the appellant, sentence of three years awarded by the High Court is too meagre and not adequate but since no appeal has been preferred by the State, we refrain from considering the matter for enhancement. By letting the appellant away on the sentence already undergone i.e. two months in a case like this, in our view, would be travesty of justice and highly unjust, unfair, improper and disproportionate to the gravity of crime. It is true that the appellant has paid compensation of Rs. 8,50,000/- but no amount of compensation could relieve the family of victims from the constant agony. As a matter of fact, High Court had been quite considerate and lenient in awarding to the appellant sentence of three years for an offence under Section 304 Part II IPC where seven persons were killed."
16.3. In the matter before the Apex Court, the question thus had also arisen with regard to maximum punishment awarded by the High Court under section 304 Part-II of the Indian Penal Code and, whether there was a need for any modification. The request also was made to release on probation of good conduct and behavior or the sentence awarded to him to be reduced to the period already undergone, for he being young and having family responsibilities.
16.4. In both these decisions, there was a gruesome act of killing many persons under the influence of liquor. In case of Sanjeev Nanda (supra), the person was young and on having noticed the gravity of the entire act committed by him, he had, in a brazen manner, continued to drive, resulting into death of six persons. While sentencing this offender, contributing the knowledge to him, of his act of drunken and rash driving, the Court had sentenced him under section 304 Part-II of the Indian Penal Code and also likewise had awarded punishment under section 304 Part (II) of the Indian Penal Code in the case of Alister Anthony Pareira(supra). As held in the case of Dalbir Singh (supra), request to convert the punishment only under section 304A of the Indian Penal Code, was denied on the ground that "automobiles have become death traps and any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents...."
17. Some of the case laws put forth by learned counsels for the purpose of compoundability would require reference at this juncture.
17.1. In the case of Saurabh Bakshi (supra), it was a case of vehicular accident where crime was registered under section 270/304A against the respondent for rash and negligent driving, where the learned trial Court found the respondent guilty under section 304A, where he was sentenced to undergo rigorous imprisonment for the period of 01 year and fine of Rs.2000/-. On an appeal being preferred, learned Sessions Judge, Patiala dismissed the appeal. He preferred criminal revision before the High Court. The High Court upheld the conviction and reduced the sentence. The challenge before the Apex Court was that there was no justification on the part of the High Court to reduce the sentence to the period already undergone only on the basis that the respondent had paid some compensation since there were two deaths. The High Court could have kept itself alive to the nature of crime and should not have interfered with the quantum of punishment. Relying on the decisions of theState of Punjab vs. Balwinder Singh and others, (2012) 2 SCC 182andGuru Basavaraj alias Benne Settappa vs. State of Karnataka, (2012) 8 SCC 734, the Apex Court has held and observed as under:-
"10. In this context, we may refer with profit to the decision in Balwinder Singh (supra) wherein the High Court had allowed the revision and reduced the quantum of sentence awarded by the Judicial Magistrate, First Class, for the offences punishable under Section 304A, 337, 279 of IPC by reducing the sentence of imprisonment already undergone that is 15 days. The court referred to the decision in Dalbir Singh v. State of Haryana and reproduced two paragraphs which we feel extremely necessary for reproduction:-
"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.
* * *
13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A Indian Penal Code as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator 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 of any human being; or even if such death ensues he might not be convicted of the offence; and lastly, that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for [pic]causing death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles."
11. In B. Nagabhushanam v. State of Karnataka the appellant was directed to undergo simple imprisonment for six months for the offences punishable under Section 304A Indian Penal Code. The two-Judge Bench referred to Dalbir Singh (supra) and declined to interfere with the quantum of sentence. Be it stated, in the said case a passage from Ratan Singh v. State of Punjab was quoted:-
"Nevertheless, sentencing must have a policy of correction. This driver, if he has to become a good driver, must have a better training in traffic laws and moral responsibility, with special reference to the potential injury to human life and limb. Punishment in this area must, therefore, be accompanied by these components. The State, we hope, will attach a course for better driving together with a livelier sense of responsibility, when the punishment is for driving offences. Maybe, the State may consider, in case of men with poor families, occasional parole and reformatory courses on appropriate application, without the rigour of the old rules which are subject to Government discretion."
12. In Guru Basavaraj (supra) the appellant was found guilty for the offences punishable under Sections 337, 338, 279 and 304A Indian Penal Code and sentenced to suffer simple imprisonment of six months and to pay a fine of Rs.2000/- and in default to suffer simple imprisonment of 45 days. The two-Judge Bench after placing reliance on State of Karnataka v. Krishna, Sevaka Perumal v. State of T.N., Jashubha Bharatsinh Gohil v. State of Gujarat, State of Karnataka v. Sharanappa Basanagouda Aregoudar and State of M.P. v. Saleem opined that there is a constant concern of the court on imposition of adequate sentence in respect of commission of offences regard being had to the nature of the offence and demand of the conscience of the society. There has been emphasis on the concern to impose adequate sentence for the offence punishable under Section 304A Indian Penal Code. The Court has observed that it is worthy to note that in certain circumstances, the mitigating factors have been taken into consideration but the said aspect is dependent on the facts of each case. As the trend of authorities would show, the proficiency in professional driving is emphasised upon and deviation there from that results in rash and negligent driving and causes accident has been condemned. In a motor accident, when a number of people sustain injuries and a death occurs, it creates a stir in the society; sense of fear prevails all around. The negligence of one shatters the tranquility of the collective. When such an accident occurs, it has the effect potentiality of making victims in many a layer and creating a concavity in the social fabric. The agony and anguish of the affected persons, both direct and vicarious, can have nightmarish effect. It has its impact on the society and the impact is felt more when accidents take place quite often because of rash driving by drunken, negligent or, for that matter, adventurous drivers who have, in a way, no concern for others. Be it noted, grant of compensation under the provisions of the Motor Vehicles Act, 1988 is in a different sphere altogether. Grant of compensation under Section 357(3) Code of Criminal Procedure with a direction that the same should be paid to the person who has suffered any loss or injury by reason of the act for which the accused has been sentenced has a different contour and the same is not to be regarded as a substitute in all circumstances for adequate sentence. Thereafter, the Court proceeded to observe:- "32. We may note with profit that an appropriate punishment works as an eye- opener for the persons who are not careful while driving vehicles on the road and exhibit a careless attitude possibly harbouring the notion that they would be shown indulgence or lives of others are like "flies to the wanton boys". They totally forget that the lives of many are in their hands, and the sublimity of safety of a human being is given an indecent burial by their rash and negligent act.
33. There can hardly be any cavil that there has to be a proportion between the crime and the punishment. It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice [pic]which includes adequate punishment cannot be lightly ignored."
Being of this view, the Court declined to interfere."
17.2. The Apex Court, in the case of Ramphal and others (supra), was considering the question of compoundability of offence, since the grievance dated back to 1987. The application was made for compounding before the Supreme Court. It was the offence under section 304 (II) read with section 149. While confirming the conviction under section 325 and sections 323/149, the Court reduced the sentence to 02 years taking into account the grievance of the year 1987. The Court had set aside the conviction and sentence and disposed of the appeal on the basis of compromise.
17.3. In the case of Ram Lal and others, the Court held that non-compoundable offence falling outside the two tables in section 320 cannot be compounded even with the permission of the Court.
Relevant paragraphs deserve reproduction profitably hereunder:-
"3.We are unable to follow the said decision as a binding precedent Section 320 which deals with "compounding of offences" provides two Tables therein, one containing descriptions of offences which can be compounded by the person mentioned in it and the other containing descriptions of offences which can be compounded with the permission of the Court by the persons indicated therein. Only such offences as are included in the said two Tables can be compounded and none else. Sub-Section (9) of Section 320 of the Code of Criminal Procedure, 1973 imposes a legislative ban in the following terms:
"(9) No offence shall be compounded except as provided by this section."
4. It is apparent that when the decision in Mahesh Chand (Supra) was rendered attention of the learned Judges was not drawn to the aforesaid legal prohibition. Nor was attention of the learned Judges who rendered the decision in Y.Suresh Babu (supra) drawn. Hence those were decisions rendered per incuriam. We hold that an offence which law declares to be non-compoundable even with the permission of the Court cannot be compounded at all. The offence under Section 326 Indian Penal Code is, admittedly, non-compoundable and hence we cannot accede to the request of the learned counsel to permit the same to be compounded.
5. However, considering the fact that parties have come to a settlement and the victims have non grievance now and considering the further fact that first appellant has already undergone a period of imprisonment of about six months, a lenient view can be taken and the sentence can be reduced to the period which he had already undergone. We order so and direct the jail authorities to set him at liberty forthwith."
17.4. In the case of Gulab Das and others (supra), the offences which were not compoundable under section 320 were sought to be compounded. The Court held that the same cannot be done even if there is settlement between the complainant and the accused. However, the sentence has been reduced in light of the settlement. While upholding the order of conviction recorded by the court below, the Apex Court reduced the sentence awarded to the appellants to the sentence already undergone by them. While so doing the court has followed the decision rendered by the Apex Court in the case of Ram Lal and other (supra).
17.5. In the case of Bankat and another(supra) the Supreme Court observed that only the offences which are covered by Table 1 or Table 2 as as provided under section 320 of the Indian Penal Code can be compounded and the rest of the offences punishable the Indian Penal Code cannot be compounded. The Court rejected the request to compound offence under section 326 of the Code. However, considering the fact that the parties had settled the dispute outside the Court and the fact that 10 years had elapsed from the date of the incident and as the appellants have undergone several months of imprisonment, the Court held that the sentence of imprisonment should be reduced besides imposing fine of Rs.5000/- and compensation granted to the injured.
17.6. In the case of Badrilal (supra), it was a case of conviction under section 307 of the Indian Penal Code. There was no allegation that the accused had assaulted the victim. On such facts, sentence of imprisonment imposed by the trial Court and reduced by the High Court was further reduced to the period already undergone. The Apex Court allowed the appeal.
18. In the case of Y. Suresh Babu (supra) offence under section 326 of the Indian Penal Code, which is otherwise non-compoundable was permitted to be compounded on a condition that the appellant pays Rs.10,000/- by way of compensation for physical injury sustained with knife.
19. In the case of Mahesh Chand (supra), there was a question of compounding of offence under section 307 of the Indian Penal Code. A counter case arising out of the same transaction was already compromised. Parties prayed to treat it as a special case and compound the offence. The Apex Court that section 307 of the Indian Penal Code is not compoundable, but as a counter case arising from the same transaction was compromised, the Court permitted the same.
20. In the case of Puttaswamy (supra), there was a compromise between the parties in the Court. The Court held that even if an offence is not compoundable within the scope of section 320, the Court may, in view of the compromise arrived at between the parties, reduce the sentence imposed while maintaining the conviction. The sentence had been reduced to the period already undergone subject to the payment of fine. This, of course, had been done by the Apex Court exercising the powers under section 142 of the Constitution in order to give quietus to the issue contemplating pragmatic solution as under:-
"8. In this connection regard may be had to the decision of this Court in the case ofSurendra Nath Mohanty and another vs. State of Orissa, (1999) 5 SCC 238, which was disposed of by a Three-Judge Bench, wherein in respect of a conviction under Section 326 I.P.C. the sentence was reduced to the period already undergone together with fine. Of course, as mentioned hereinbefore, the said decision was rendered in the facts of the said case.
9. Reference was also made to two other decisions of this Court in i)Ram Lal and another vs. State of J & K, (1999) 2 SCC 213and ii)Bachhu Singh vs. State of U.P., (2000) 10 SCC 313, wherein the same formula was applied.
10. As far as the other proposition is concerned, reference may be made to the decision of this Court in the case ofAvinash Shetty vs. State of Karnataka and another, (2004) 13 SCC 375where the conviction was altered from Section 326 to 324 I.P.C. and the offence was permitted to be compounded.
11. There is yet another decision in the case ofY. Suresh Babu vs. State of A.P., (2005) 1 SCC 347which deals directly with a conviction under Section 326 IPC. This Court allowed the parties to compound the case in the special facts and circumstances of the case, but also directed that the same was not to be treated as a precedent.
12. What emerges from all these decisions is that even if an offence is not compoundable within the scope of Section 320 of Code of Criminal Procedure the Court may, in view of the compromise arrived at between the parties, reduce the sentence imposed while maintaining the conviction."
21. In the case of B.S. Joshi (supra), the Court held that those offences, which are not mentioned in section 320 cannot be permitted to be compounded. The Court held that the Apex Court categorizes the case in which such powers can be exercised. However, the categories, as stated in the case ofState of Haryana vs. Bhajan Lal, (1992) SCC(Cri) 426, can not be stated to be exhaustive. This, of course, was a case of matrimonial dispute and the Court held that the object of introducing Chapter XX-A containing section 498-A was to prevent torture to women by her husband with a view the punish the husband and his relatives for harassing. The hyper technical view would be counter productive and would act against the interest of women.
21.1. Relevant findings and observations are as follows:-
"9. The High Court has also relied upon the decision in case of Surendra Nath Mohanty's case (supra) for the proposition that offence declared to be non-compoundable cannot be compounded at all even with the permission of the Court. That is of course so. The offences which can be compounded are mentioned in Section 320. Those offences which are not mentioned therein cannot be permitted to be compounded. In Mohanty's case, the appellants were convicted by the trial court for offence under Section 307. The High Court altered the conviction of the appellants and convicted them for offence under Section 326 and imposed sentence of six months. The trial court had sentenced the appellants for a period of five years RI. The application for compounding was, however, dismissed by the High Court. This Court holding that the offence for which the appellants had been convicted was non-compoundable and, therefore, it could not be permitted to be compounded but considering that the parties had settled their dispute outside the court, the sentence was reduced to the period already undergone. It is, however, to be borne in mind that in the present case the appellants had not sought compounding of the offences. They had approached the Court seeking quashing of FIR under the circumstanced abovestated.
10. InState of Karnataka v. L. Muniswamy & Ors., (1977) 2 SCC 699, considering th e scope of inherent power of quashing under Section 482, this Court held that in the exercise of this wholesome power, the High Court is entitled to quash proce edings if it comes to the conclusion that ends of justice so require. It was ob served that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature. This Court said that the compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. On facts, it was also noticed that there was no reasonable likelihood of the accused being convicted of the offence. What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier noticed, now she has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. It may be either for the reason that she has resolved disputes with her husband and his other family members and as a result thereof she has again started living with her husband with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds. In such eventuality, there would almost be no chance of conviction. Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences. Answer clearly has to be in 'negative'. It would, however, be a different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bona fides.
xxx xxx xxx
12. The special features in such matrimonial matters are evident. It becomes the duty of the Court to encourage genuine settlements of matrimonial disputes.
13. The observations made by this Court, though in a slightly different context, inG.V. Rao v. L.H.V. Prasad & Ors., (2000) 3 SCC 693are very apt for determining the approach required to be kept in view in matrimonial dispute by the courts, it was said that there has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different courts."
22. In the case of Nikhil Merchant (supra) the very issue had arisen and the Court followed the B.S. Joshi (supra)vs. State of Haryana and other decisions and held thus:-
"24. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshi's case (supra) and the compromise arrived at between the Company and the Bank as also clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise."
23. In the case of Sathiyamoorthy and others (supra), the offence under sections 148 and 149 were not compoundable. They were permitted to be compounded, considering the compromise entered into between the accused and the victim.
24. In 2008 Manoj Sharma (supra), the Court issued guidelines of quashing of non-compoundable offence in view of the compromise arrived at between the parties in the following manner:-
"22. Since Section 320 Cr.P.C. has clearly stated which offences are compoundable and which are not, the High Court or even this Court would not ordinarily be justified in doing something indirectly which could not be done directly. Even otherwise, it ordinarily would not be a legitimate exercise of judicial power under Article 226 of the Constitution or under Section 482 Cr.P.C. to direct doing something which the Cr.P.C. has expressly prohibited. Section 320(9) Cr.P.C. expressly states that no offence shall be compounded except as provided by that Section. Hence, in my opinion, it would ordinarily not be a legitimate exercise of judicial power to direct compounding of a non-compoundable offence.
23. However, it has to be pointed out that Section 320 Cr.P.C. cannot be read in isolation. It has to be read along with the other provisions in the Cr.P.C. One such other provision is Section 482 Cr.P.C. which reads:
" Saving of inherent power of High Court. - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
The words "Nothing in this Code" used in Section 482 is a non obstante clause, and gives it overriding effect over other provisions in the Cr.P.C. The words "or otherwise to secure the ends of justice" in Section 482 implies that to secure the interest of justice sometimes (though only in very rare cases) the High Court can pass an order in violation of a provision in the Cr.P.C.
24. It is true that in certain decisions of this Court it has been observed that the power under Section 482 Cr.P.C. cannot be exercised to do something which is expressly barred under the Code videMosst. Simrikhia vs. Dolley Mukherjee, (1990) AIR SC 1605(vide paras 2 & 4),R.P. Kapur vs. State of Punjab, (1960) AIR SC 866(vide para 6),Sooraj Devi vs. Pyare Lal & another, (1981) AIR SC 736(vide para 5) etc.
25. However, in my opinion these judgments cannot be read as a Euclid's formula since it is well settled that judgments of a Court cannot be read mechanically and like a Euclid's theorem videDr. Rajbir Singh Dalal vs. Chaudhari Devi Lal University, (2008) 8 JT 621,Bharat Petroleum Corporation Ltd. & another vs. N.R. Vairamani and another, (2004) AIR SC 4778). In rare and exceptional cases a departure can be made from the principle laid down in the decisions referred to in para 20, as observed in B.S. Joshi's case (supra), which has also been followed in other decisions e.g. Nikhil Merchant's case (supra). Even in the judgment of this Court in Divisional Manager Aravalli Golf Club (supra) where emphasis has been laid on judicial restraint it has been mentioned that sometimes judicial activism can be resorted to by the Court where the situation forcefully requires it in the interest of the country or society (vide para 39 of the said judgment). Judicial activism was rightly resorted to by the U.S. Supreme Court inBrown vs. Board of Education 347 U.S. 483,Miranda vs. Arizona 384 U.S. 436, Roe vs. Wade 410 U.S. 113, etc. and by Lord Denning in England in several of his decisions.
26. While in the present case I respectfully agree with my learned brother Hon'ble Kabir J. that the criminal proceedings deserve to be quashed, the question may have to be decided in some subsequent decision or decisions (preferably by a larger Bench) as to which non-compoundable cases can be quashed under Section 482 Cr.P.C. or Article 226 of the Constitution on the basis that the parties have entered into a compromise.
27. There can be no doubt that a case under Section 302 IPC or other serious offences like those under Sections 395, 307 or 304B cannot be compounded and hence proceedings in those provisions cannot be quashed by the High Court in exercise of its power under Section 482 Cr.P.C. or in writ jurisdiction on the basis of compromise. However, in some other cases, (like those akin to a civil nature) the proceedings can be quashed by the High Court if the parties have come to an amicable settlement even though the provisions are not compoundable. Where a line is to be drawn will have to be decided in some later decisions of this Court, preferably by a larger bench (so as to make it more authoritative). Some guidelines will have to be evolved in this connection and the matter cannot be left at the sole unguided discretion of Judges, otherwise there may be conflicting decisions and judicial anarchy. A judicial discretion has to be exercised on some objective guiding principles and criteria, and not on the whims and fancies of individual Judges. Discretion, after all, cannot be the Chancellor's foot."
25. In the case of Gian Singh (supra), the guidelines for limitation of exercise of quashment power of the High Court had been laid down. The Court held that High Courts powers to quash and set aside the criminal proceedings is distinct and different from the power of criminal Court of compounding offence under section 320. The High Court must have due regard to nature and gravity of crime and its social importance before exercise of quashment of power under section 482 of the Code of Criminal Procedure.
25.1. The Apex Court was considering the correctness of the decision of B.S.Joshi (supra), Nikhil Merchant (supra) and Manoj Sharma (supra) and the matter was referred to the Larger Bench, where the Apex Court considered that the Court cannot maintain stay and must maintain judicial restraint. The Courts should not try to take over the function of Parliament or Executive and it is the Legislative alone which can amend section 320 of the Code of Criminal Procedure. Referring the above mentioned three decisions, it was opined by the Bench referring the issues that something " which cannot be done directly cannot be done indirectly". In order to, prima facie, opine, non-compoundable offence cannot be permitted to be compounded by the Court whether directly or indirectly. Hence, the above three decisions do not appear to us to be correctly decided.". Thus, the Court felt the need of reconsideration and, therefore, the matter had been placed before the Larger Bench to reconsider the correctness of the said decision. The Court, after a detailed discussion, has held that these three decisions were not correctly decided.
25.2. It summarizes the legal position after exhaustive discussion:-
"61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
26. Thus, it has been made quite clear that this Court is required to give due regard to the nature and gravity of the crime and each matter will depend on the facts and circumstances established in those matters. Heinous and serious offences and mental depravity and offences like murder, rape and decoity, cannot be quashed, even when the victims or victims' family or offenders have settled the disputes, because the law does not consider such offences as private in nature and they do have very serious impact on the society. It has been made very clear that the offences under the special statute like the prevention of corruption and those offences committed by public servants, while working in that capacity, also cannot provide any basis for quashment. What can be permitted to be compromised are the criminal cases having essentially and overwhelming civil flavour, particularly, arising from the commercial, financial, mercantile, civil, partnership or such transactions and offences arising out of the matrimony. The High Court, when considers that continuing with the criminal proceedings would tantamount to abuse of process of law, despite settlement and compromise between the victim and the wrong doer and that that for securing the ends of justice, it would be appropriate to put an end to the criminal case, it shall need to so regard. It also further culls out that in a case of road accident, although the payment of compensation on the part of the convict or the accused to the victim and his family shall be regarded as sufficient compliance of direction of taking care of the victims under section 357 and 357A of the Code of Criminal Procedure, that per se would not be the ground for the Court to accede to the request of permitting the period undergone as sufficient or that to be made the basis for quashment.
27. In this backdrop, this Court requires to revert to the facts of the instant case where it is more than apparent as also reflected in the order of the revision application that the parties have compromised fully and they have already reduced into writing this aspect by way of an affidavit of the father of the deceased Ghanshyambhai Patel. It is an affidavit of father of Shivam, which is also on the record. The affidavit does not contain any particular figure of compensation. However, the Court when insisted on such figure to be revealed by way of purshis, father of both the victims have filed affidavit and also made declaration that the total amount paid to families of Rahul and Shivam is Rs.3 crores (Rupees One Crore and Fifty Lakhs to each family).
27.1. This has led the father of Rahul Patel to file the affidavit. Relevant paragraphs are reproduced as under:-
"2. It is stated that all the parties sat together in presence of elderly persons of the family. The parties have amicable settled the dispute and had decided to have peaceful and amicable relations between each other. It is also stated that me and my family are sufficiently compensated by the family of Vismay Amit Shah and I also believe that family members of Vismay Amit Shah have also suffered.
3. In view of the above facts, being the father of victim, I do not have any grievance against Vismay Amit Shah and therefore, appropriate order may be passed in proceedings pending before the Hon'ble High Court of Gujarat, at Ahmedabad which would sub-serve the ends of justice as that will maintain peace and harmony as well as ensure cordial relations between the parties.
4. it is also stated that I also undertake to co-operate in the proceedings before the court of law and confirm such facts and circumstances as mentioned hereinabove in person as and when necessary.
5. In view of the above, I undertake to cooperate the present appellant in Criminal Appeal No.1016 of 2015 filed by the State of Gujarat in getting that also appropriately disposed of.
What is stated hereinabove is true to the best of my own knowledge, information and belief; and I believe the same to be true and the present affidavit is done without coercion or influence."
28. It is also to be noted that the Criminal Revision Application No.374 of 2015 as mentioned hereinabove, has already been permitted to be withdrawn, as the victim was unwilling to press the same in wake of the compromise. However, the request of deciding the compoundability aspect, first in point of time, before entering into the merit has not been found acceptable. More particularly, keeping in mind the ratio laid down in various authorities as discussed hereinabove, it is culling out indubitably from the record that the parties have chosen to settle their disputes and the parents of the deceased, since are aging and as both parents have lost the only male child, the compensation, which otherwise could have been quantified and granted by this Court, over and above what has been awarded by the trial Court have been arrived at. The parties have sat across the table and finalized the amount, expressing their total satisfaction over the amount, which has been given, that per se may not be the ground for the Court to permit either accede to the request of period undergone to be construed as sufficient punishment or to allow the appeal in toto as requested for.
28.1. While examining and appreciating the evidence on merits, this aspect would be further dilated to vindicate further as to why such a request is not conducive in the instant case either for punishing the Appellant or for the larger public interest.
28.2. This Court is conscious that the compensation made by the Appellant to the families of both the victims runs into lakhs of Rupees (Rupees 1.50 crores each). The families of both the victims have also joined the convict to make a request for reduction in punishment and has no grievance left in wake of huge amount of compensation already granted, although it is a very vital component and in case ofAnkush Shivaji Gaikwad vs. State of Maharashtra, (2013) 6 SCC 770), the Apex Court has gone to an extent of directing the trial Court to accord reasons every time, it chooses not to grant compensation.
28.3. As compared to the lives lost, the compensation given always pales into insignificance. After convicting the persons for the crime alleged, the awarding of compensation is a very important component of Criminal Justice System and field of victimology though is at a nascent stage in India, its crying need can also be understood from the introduction of section 357A and amendment of Section 372 of the Code of Criminal Procedure. Nevertheless, when drunken driving and rash and negligent driving on the road are two most contributing factors of road accidents and the deaths as per the NCRB, the leniency cannot be shown by the Court in awarding the punishment. This also would mean that it can be a licence for those who are negligent or rash and have knowledge of the consequence of their act, to be pardoned and condoned merely because they would have sufficient money power to pay to the victim or victim's families. Money would have its own value as compensation but, that is quite insignificant and wholly incapable to replace the lives lost. In such matters where precious human lives are gone, plea of compoundability cannot be countenanced. Societal interest cannot be lost site of while considering such plea as deterrence is also a means to prevent future crime.
28.4. Conscious of the fact that drunken driving is not established on record, this Court from the discussion above, chooses not to show indulgence while considering the appellant that the payment of compensation be construed as sufficient compliance and to treat the period undergone by the appellant convict of 1 years as sufficient without entering into the merits.
F Appreciation on Merits Evidence Ocular/Documentary
29. The evidence, oral as well as documentary which has been adduced by the prosecution and attempted to be assailed by the appellant, deserve consideration at the hands of the Court at this juncture. There are in all 33 witnesses examined by the prosecution, who could be divided broadly in four different categories.
(1) Eye witnesses (2) Panch Witnesses (3) Expert Witnesses (3a) Medical/Scientific Experts (3b) Mechanical Experts (4) Police witnesses.
G. Issue of Identity and Identification of Driver
29.1. Entering into merits of the matter, firstly the issue of identity shall need to be regarded as serious challenge is made by the appellant to the question of identity. Emphasis is laid that the onus is always upon the prosecution to prove beyond reasonable doubt the identity of the person, who is alleged to have committed a crime in question.
29.2. Section 101 of the Indian Evidence Act also provides for the party, whoever desires any Court to give judgement, as to any legal right or liability dependent on the existence of the facts which he asserts, must prove those facts to exist. When a person is bound to prove the existence of any fact, then the burden of proof lies on that person. It is a settled law that the prosecution needs to succeed by substantially proving the allegations it makes and to stand on its own strength rather than on the weakness of the defence.
29.3. The burden of proof as per section 102 in a suit or proceeding lies on that person who would fail, if no evidence at all were given on either side.
29.4. Section 103 also provides that the burden of proof as to particular fact, lies on that person, who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
29.5. At the same time, section 106 provides that the burden of proving facts especially within the knowledge of any person is always upon him. This section is an exception to the general rule governing the burden to proof by the prosecution. This provision applied to all those facts which are exclusively within the knowledge of the accused and are therefore, exclusive to the general rule, requiring prosecution to prove them beyond reasonable doubt.
29.6. Section 114 permits the Court to presume existence of certain facts and also provides that the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person , who withholds it and that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him to answer by law.
29.7. It is the prosecution which desires the Court to give judgment to any liability, dependent on the existence of the facts, which it asserts and hence, is required to prove the existence of fact and hence, it is required to prove the same. At the same time, exception to general rule also requires facts, which are exclusively within the knowledge of accused to be proved by him. His refusal to answer which he is not compelled under the law to answer, if given, could be presumed to be unfavourable. Appellant's exclusive knowledge of driver of vehicle and his non-answer also would permit presumption.
29.8. While considering the issue of identity, the Court needs to refer to the order of the Apex Court granting regular bail to the appellant, during the pendency of trial. One of the conditions laid down by the Apex Court is not to question the identity, which is seriously disputed by the defence on the ground that the burden essentially lies on the prosecution and secondly even if there is a consent on the part of the appellant not to question the identity of the person, as to who had allegedly committed the accident, more so, on the ground of eye-witnesses having turned hostile to the case of the prosecution, it is urged that from the identification, fundamental aspect has not been established.
29.9. In the opinion of this Court, these submissions do not find favour with the Court for various reasons given hereinafter.
29.10. Firstly, it is to be mentioned that at the time of making a request to the Court during the pendency of the trial, when there was so much of gravity involved, expressing apprehension also on the part of the prosecution that the release of the appellant may also result into his winning over the witnesses, for ensuring the release, the possibility cannot be ruled out that the appellant had volunteered to forgo his right of getting it established independently and separately. Defence if choses to admit certain facts knowing fully well its implication, it then cannot take a vault face and complain of non-proving of the identify. It is to be noted that, even if it had been imposed by the Apex Court on its own, at no point of time, this condition laid down by the Apex Court has been questioned, challenged or any review is sought. Fully aware of the interpretation of wordings, "He will not dispute his identity as the accused in the case.", the petitioner has chosen to enjoy the benefit of liberty arising out of the order dated 31.03.2014 passed by the Apex Court. However, when it comes to owning the responsibility, and also visit the consequences of this order, he cannot be permitted to take a contrary stand nor can be permitted to question the same. Had he done this on an earlier occasion, when leniency was shown by the Court while permitting his release, it would have been a different story.
29.11. Although, under the law, question of identity, undoubtedly requires to be established by the prosecution and to that extent, legally, these submissions if are examined, this Court needs to remind itself that it is not only the direct ocular evidence of the involvement of the appellant and his identity, which could, in a clinching manner, establish his involvement in commission of crime in question, even on the strength of circumstantial evidence, presence of the persons can be proved beyond reasonable doubt. Endeavours made by the trial Court holding him liable beyond a semblance of doubt deserves elaboration here.
29.12. Additionally, if one looks at the ocular evidence, Mr. Lalit Rakeshbhai Gupta (P.W.No.11), has lodged the First Information Report on 24.02.2013, who was accompanying both the victims on another vehicle with P.W.No.12, he is stated to be a witness of the incident. His statement also has been recorded under section 164 of the Code of Criminal Procedure on 21.03.2013 in presence of P.W.No.22.
29.13. P.W.No.12 is Mr. Dineshbhai Mafabhai Chaudhary, who was present with the first informant and the deceased at the time of offence. His statement also has been recorded under section 164 of the Code of Criminal Procedure. Evidence of these persons (P.W.Nos.11,12 and 13) requires elaborate consideration at this stage.
29.14. P.W.No.11-Lalit Rajeshbhai Gupta, as per the case of the prosecution is the complainant, who initiated prosecution by lodgment of FIR. He has not chosen to support the case of the prosecution on all material aspects.
29.15. This first informant Lalit Rajeshbhai Gupta (P.W.No.11) Exh.No.94, was also pursuing course in mechanical engineering at Swaminarayan College, Kalol. According to him, Dinesh Mafabhai Chaudhary, was his friend and Rahul and Shivam were school friends. On 24.02.2013, they all gathered near Sanjivani Hospital,Vastrapur. Rahul had Pulsar bike bearing registration No. GJ-1-FR-711 and Dinesh Mafabhai Chaudhary had Kinetic Honda with him. They decided to go to Paratha House near Nalanda complex. After dinner, they went around 12:15 a.m. towards judges bungalows road. Rahul Patel was driving and Shivam was the pillion rider on Pulsar bike, whereas he himself (Lalit Rajeshbhai Gupta) was driving Kinetic Honda, which was of Rahul Patel, and Dineshbhai Mafabhai Chaudhary was the pillion rider on the Kinetic Honda. While going from Mansi Circle to Judges bungalows police Chowki, a BMW Car with Registration No. CH-1- AE-9360 came at the speed of around 100 to 150 kmph and hit the Pulsar bike and both Shivam and Rahul were thrown in the air for about 10 to 15 feet and had fallen down on the ground. The BMW car then hit the tree near Amul Parlor and had halted because of the accident. They first went to Shivam, who was profusely bleeding on head and Rahul also was critical. Therefore, Dineshbhai Mafabhai Chaudhary started calling 108 Ambulance and others also had gathered. They made a request for help, but nobody was ready to render assistance and that therefore, they intimated Shivam's father Premshankarbhai. At Sanjivani Hospital, Shivam was declared dead and Rahul was shifted to ICU.
29.16. This witness also stated that one person got down from BMW Car at the place of incident and left saying "sorry, sorry" and he chose not to identify the appellant, as the person driving the vehicle. He was taken to Mirzapur Court and his statement was recorded on 21.01.2013, where a Lady Judge was there. On 25.02.2013, CCTV footage was also gathered, which was a CD obtained from Laxmi Ganthiya Rath.
29.17. P.W. No.12-Dineshbhai Mafabhai Chaudhary was studying in S.Y.B.com and was working in his father's dairy. He was a pillion rider on Kinetic Honda, which belonged to Rahul Patel and was driven by Lalit Rajeshbhai Gupta(P.W.No.11). He also repeated, what has been stated by P.W.No.11. He called up Rahul's father and Lalit called up Shivam's father. Police reached the hospital after about 45 minutes. He also stated that BMW car dashed with the tree and had stopped. It was once again inquired by the Vastrapur police station on 27.02.2013. Their statements had been recorded by learned Judge Ms. Mayadevi (Exh.No.24) and these statements under section 164 of the Code of Criminal Procedure were signed by him, he also identified his signatures. Learned Judicial Magistrate also deposed establishing giving of statement under section 164 of the Code of Criminal Procedure voluntarily.
29.18. The First Information Report (Exh.No.95) is not a substantive piece of evidence and yet, it would have its corroborative value. This witness has given all the details in the First Information Report as to how the accident has occurred and what had happened in the said incident. This very witness in his examination-in-chief has given the details, however, he has turned hostile to the case of the prosecution on vital and material aspects of involvement of appellant. According to him, through the police, he came to know that the offending car involved in the incident, was black coloured BMW car. He also, in his examination, has stated that when accident occurred, he has not seen as to, who was driving the vehicle and what clothes were worn by the driver and, therefore, the defence has objected strongly that through this witness, it is not clear as to who was driving the same and even if the prosecution proves the incident successfully and the vehicle involved in the accident, it does not absolve the prosecution from proving that the offending vehicle was driven by the appellant.
29.19. It appears that on drawing the panchnama at the scene of offence of the offending vehicle, the Insurance Company policy of Bajaj Allianze General Insurance Company is found in a white envelope and it was issued in the name of appellant Vismay Amitkumar Shah. Although the Panch witness to this Panchnama has not supported on vital aspects like deposition of Investigating Officer and its recovery, establishing this aspect. Under section 313 of the Code of Criminal Procedure, the Appellant also agrees that these papers were in the car revealing his ownership. According to the defence, on the basis of this document, the police as well as media has started involving appellant Vismay. Otherwise, there was no evidence at all with the prosecution. Merely because, the appellant accused had owned this vehicle, will not prove that it was driven by him at the time of incident. This, at the best, would prove that the appellant was the owner of the vehicle and can never be inferred that the vehicle at the time of the incident was driven by him. It is alleged that in a hot haste and over enthusiasm to crack the case, the police authority as also to run headlines of breaking news, the print as well as the electronic media started with the case that the appellant was driving the offending vehicle.
a) Thus, according to the defence, despite there being the fullest opportunity available to the prosecution, they have not succeeded in establishing the identity of the accused at the time of commission of offence.
b) It is also lamented by the defence that the T.I. Parade could have been conducted and the service of Executive Magistrate could have been taken, which has not been done. Even the second panch witness i.e. P.W.No.10 has not deposed anything with regard to the identification of the appellant. No identification though is permitted, without following the due procedure the Investigating Officer and the media together have concocted a story and placed the appellant as author of the crime within three days of the incident and his arrest was also ensured.
29.20. This witness Mr. Gupta had stated that on 27.02.2003, he saw appellant at Vastrapur police station and police had shown him by stating that his friend was killed by this person. Accordingly, he came to know about the appellant. He has also given interview in a talk show of one Gujarati channel and has also not supported impudently.
29.21. Even in cross-examination, after declaring the witness (P.W.No.11) hostile, he has denied that after the offending vehicle dashed with the tree, one person alighted from the car and said "sorry, sorry" to him and, therefore, he had an opportunity to see him and identify him. The witness in the cross-examination has denied the fact that the driver of the car was aged 24 years and had run away, as per the version of the defence. The interview given by P.W.No.11 Lalit Rajeshbhai Gupta in a talk show conducted by the GTPL channel pressed into service for the purpose of identification shall require consideration hereinafter.
29.22. P.W.No.7, Ashok Galaji Thakore, the panch witness to the arrest of accused, has been also declared hostile, in whose presence P.W.No.11 identified the appellant and thus has not supported the case of the prosecution.
29.23. According to P.W.No.10 Jitubhai Chhaganbhai Nai, panch witness of physical condition of appellant also the police had shown him the accused at the time of drawing Panchanama (Exh.No.85) and informed that he was Vismay. Thus, while drawing the panchnama, the police, panch witness and the appellant, all were present, and his deposition eliminated the theory of identifying the accused through the eye-witness in a police station.
29.24. Witness, Shri Ghanshyam Madhavlal Patel (P.W.No.3), is the father of deceased Rahul Patel, who was studying in Som Lalit College in commerce faculty met with an accident. According to this witness, he was admitted to Sanjivani Hospital, he came to know about the accident on 24.02.2013 when friend of deceased Rahul Patel, Dinesh Mafabhai Chaudhary called him up that there was an accident of Rahul and he was admitted near Vastrapur Lake at Sanjivani Hospital and he went there with his wife and neighbours and there were many others, who were present, which included Lalit Rajeshbhai Gupta and Dinesh Mafabhai Chaudhary and others. Lalit Rajeshbhai Gupta informed him that by a BMW car, the accident had occurred, which caused injuries to Rahul amd Shivam. This had happened near Laxmi Ganthiya Rath at T-Junction of Pramchandnagar Road. Rahul Patel was driving the vehicle and Shivam Dave was the pillion rider and Lalit Rajeshbhai Gupta and Dinesh Mafabhai Chaudhary were on Kinetic Honda with registration No.GJ-1-CV-7177 and both the vehicles were moving together. On 27.02.2013, between 10:00 p.m. and 11:00 p.m., Rahul Patel was declared dead. According to him, it was intimated by Lalit Rajeshbhai Gupta that BMW car belonged to Vismay Amitkumar Shah. According to this witness, the vehicle was at the speed of 120 to 150 kmph. Rahul and Shivam were coming towards Mansi towers with Lalit Rajeshbhai Gupta and Dinesh Mafabhai Chaudhary and were to go towards Lad Society and, therefore, they took a turn. The BMW Car had hit the motorcycle driven by Rahul. Lalit Rajeshbhai Gupta and Dinesh Mafabhai Chaudhary were on their Kinetic Honda and were slightly behind. After dragging for about 100 to 150 feet, the car dashed with the tree nearby and it stopped. Shivam Dave was found dead on the spot and Rahul Patel was dead after two days of hospitalization.
29.25. Likewise, in the deposition of Premshankar Motilal Dave he revealed that he was a labour contractor and also worked as a marble polisher. He has two married daughters and Shivam was his only son, who studied Civil Engineering and he was also working at Gala Construction company near Vaishnav Devi circle. He was intimated by his brother that accident had occurred on 24.02.2013 near T-Junction of Premchandnagar Road. He was conveyed that Shivam Dave was also admitted to Sanjivani Hospital and when they visited the place, son was found dead on a stretcher. It was Lalit Rajeshbhai Gupta, who had conveyed the manner in which the accident had happened. He also had the same version as given by earlier witness Ghanshyam Madhavlal Patel. None of these two persons are eye-witnesses and they are parents of the victim boys. They are categorical about the details furnished by both P.W.no.11 and P.W.no.12 soon after the incident and other peripheral details as to how these boys were out at the night.
29.26. Yet another eye-witness to the incident is P.W.No.13 Mitesh Kiranbhai Shah, who has been working with Automachine Project. He was driving Accent car with registration number GJ-LQ-9460. He was driving Assent car and was going at around 12:00 clock from Judges Bungalows to Mansi Circle. The BMW Car had come in much speed, which could be more than 100 kmph and did overtake from the left hand side touching the left hand side of the bonnet of his car. The car was a dark blues colour car. He could not see the registration number of the car, but could notice the first two alphabets "CH". When he reached near Amul Parlour at T-Junction, he realized that one person was thrown on the road and he was profusely bleeding. He could sense that the person may not be alive and another person was lying at the distance of 10 to 15 feet. This man also halted his car, where he found two boys scuffling and one boy had run away. He made a U-turn from Mansi circle and came up and by then many people had rushed there. He could notice that smoke was coming out from BMW car and the tree also was affected because of that. He noticed that the BMW car bore registration number CH-1-AE-9360. His vehicle also had a dent on the left hand side of the bonnet of the vehicle due to the impact. He saw the incident at the distance of 40 to 50 meters. Both the boys were flung in the air from the bike and the BMW car, after hitting the bike, had dashed straight into the tree. His vehicle was damaged and had incurred expenditure of around Rs.10,000/- to Rs.15,000/-. Though much attempt is made to challenge the deposition of this witness, he could not be resiled from his version.
29.27. It is extremely unfortunate that P.W.No.11 and 12 did not adhere to their original version and P.W.No.11, who had, in fact, eye-witnessed the driver, chose to take a volt face. Be that as it may, according to this Court, there exists sufficient other evidence on record to hold that prosecution succeeded in establishing his identity.
29.28. Apt would be to refer to the deposition of some of the media persons, who acted as technical heads of GTPL, Gujarati Television channel. P.W.No.27 is Channel Head of GTPL, news anchor, P.W.No.28 Dilip Desai and Technical Head of the channel, P.W.No.30 Ashish Vinodchandra Gajjar, who prepared DVD of the talk show, P.W.No.26 is a the panch witness of the panchnama under which the DVD was seized and sent to the FSL for report. The Scientific Officer Mr. Niraj Arvindbhai Pancholi (P.W.No.32) was examined, who prepared the transcript from the DVD again. The Investigating Officer was directed to further investigate the same pursuant to the order of the Court. Shri Mayurdhwaj Kishoresinh Rana has been examined as P.W.No.33, who had separately produced the transcript of the DVD.
29.29. It is to be noted that P.W.No.30, Ashish Vinodchandra Gajjar, the Technical Head, GTPL, who prepared DVDs, also has referred to P.W.No.29 Shah Timir Dineshbhai, who has videographed the recording of the statement under section 161 of P.W.No.27 (Padmakant Ramchandra Trivedi)and P.W.No.28 (Dilip Varvabhai Desai)respectively as also drawing of Panchnama by producing two DVDs procured by P.W.No.27. Although against this videography, what has been objected by the defence is that, if the police statements cannot be exhibited, videography of recording of the statement also cannot be exhibited and, it is fallacy in the argument of the prosecution that looking to the statements contained in CDs (Exh.No.196), on the basis of which the cross-examination of the witnesses have been done, should be brought on the record.
29.30. P.W.No.29 had been re-examined, according to the defence, and it has been clarified that the person, who is said to have participated in a talk show, himself has designed it and, therefore, the person, who interviewed him cannot give any evidence on that score. Therefore, the statement contained in CD at Exh.No.196 is a statement under section 161 of the Code of Criminal Procedure. Moreover, these DVDs at Exh.Nos.194 and 196 are not accompanied with certificate, as provided under section 65-B of the Indian Evidence Act and, therefore, it is not admissible in evidence. Even the source from which the CDs have been made is a primary evidence and the same has not been produced before the Court.
29.31. P.W.No.28 Dilip Varvabhai Desai, the interviewer of talk show and P.11 Lalit Gupta recorded the same at GTPL office. This witness, since is not an eye-witness and, as he claims that he has heard it from the eye-witness in a talk show without drawing any attention of P.W.No.11 to the contents of transcript of Exh.Nos.185 and 186, the evidence of P.W.No.28, according to the defence, is to be treated as hearsay evidence. Strong objection is also raised to the admission of Exh. Nos.185 and 186, which are both of DVDs.
29.32. The DVD at Exh.No.186 also was questioned, which was obtained from Gujarat News Channel. The detailed discussion has been held by the trial Court in relation to the DVD at Exh.186. The genuineness of which had been also questioned before the FSL. According to P.W.No.31 Girish Chhaganbhai Desai, it was sent in a sealed condition in the FSL.
29.33. P.W.No.32 Niraj Arvindbhai Pancholi has been examined as FSL officer. This was handed over to Deputy Director, who examined the same on priority basis. The authentication was to be done of the file contained in DVD. It was an MPG video file and MPG format of 28.33 minutes. He made a transcription of the same and for all the dialogue, DVD transcripts had been made by him. It was prepared only in one layer, meaning thereby, that one file was written there had been no deletion nor any corrections were possible. He also had examined that authentication of video file. File had used a connotation in picture effect and colour effect. From the beginning till the end, the video also had not been tampered. Thus, the transcript prepared in 10 pages clearly had been reported not to have been tampered with in any mode or manner.
29.34. This witness has been also cross-examined in detail. He admitted that the report and transcript files have been sent to the Deputy Director, but not to the Head of the Department. Exh. No.208 is the report, which speaks of no tempering in relation to the DVD. This is very important because the complainant and the eye-witness Lalit Rajeshbhai Gupta has turned hostile. The FSL witness had admitted that there are no specific reasons given in his report that DVD was not tempered with. However, he maintained that it was prepared in one layer and there were no changes at all. The transcript was prepared over the period of time. This very clearly belies the stand of the complainant that he never went to the GTPL Channel office nor he had any idea of "Lok Manch" programme. He also went to an extent of saying that he did not remember as to whether on 27.02.2013, he went anywhere for such interview. He, of course, went for one interview on the day when Rahul Patel passed away, but he did not remember as to whether he had gone and Prem Shanker Dave whether was with him.
29.35. P.W.No.11 admitted while watching DVD that Prem Shanker Dave was present with him. According to him, there was a wrong script and the reply had to be given by him accordingly. This version of the complaint is not at all trustworthisome and cannot be believed. Even if the DVD and the preparation of which is not to be admitted, for the purpose of establishing the presence of the appellant, as driver of the vehicle independently or as a stand alone evidence, this nature of evidence will certainly invite the proceedings of perjury. Such proceedings has been rightly initiated against Mr. Lalit Rajeshbhai Gupta by the trial Court and this will be one of the circumstances, even if this is believed to be a case of circumstantial evidence.
29.36. This entire evidence, when is closely looked at along with the submissions of the prosecution and defence, the Court is of the opinion that the deposition of P.W.No.11 does not inspire confidence nor those of them, who were involved in organizing the talk show can be suspected and accordingly the DVDs cannot be doubted as alleged by the defence. It surely cannot be stated to be at the instance of the police authority. The Court cannot be oblivious of the electronic and print media having emerged very potent and its importance as the fourth estate, with the advancement of the evolved electronic age and with such powerful tools in the form of electronic media, it is not difficult to know that the common-man's interest in a case, which is much publicized case, the print and the electronic media would like to give wider publicity to such cases. However, what had been admitted on the part of the GTPL and its entire team was to organize the talk show by specific questions and answers. This could be also a on account of cause of the apprehension that in a serious case, ordinarily, the ocular evidence does not remain consistent and gets lost in an attempt to win over such witnesses. By calling P.W.No.11 Lalitkumar Gupta and the victim Rahul's father, possibly this experiment was done, as that would also make a person more accountable to the version given to the authority. However, any CD, which has been prepared and produced on the basis of the version of this witness, at this stage, cannot have a better sanctity than the substantive version of eye-witness. The Court needs to bear in mind that the statement before the police also has been recorded in a e-form or electronically, as happened in many such cases and more particularly, in important and widely publicized cases. The eye-witness more often than not, chooses not to support the case of the prosecution. The police ensures the recording of the statement through the electronic media and also present the witness before the learned Magistrate, who records the statement under section 164 of the Code of Criminal Procedure. It is unfortunate that despite all possible attempts on the part of the law makers to tighten the loose ends and to reduce the incidents of winning over and to strengthen the drive of witness protection, yet, the witnesses can chose not to support the versions given by them to the police or to the learned Magistrate, such instances go on occurring. So long as there is dependency on human agency, there are bound to be attempts of winning over or the witness making themselves available for being purchased monetarily or otherwise.
30. It is clearly a case of the P.W.No.11 telling a blatant lie that he never had gone to the office of GTPL and that his interview was never taken. The media in its enthusiasm to ensure that the case is fully insulated, when chose to organise this talk show, there is nothing to indicate nor there was any attempt on the part of GTPL to concoct or for that matter, tamper with the DVDs of the talk show, which is prepared, seized and sent to the FSL. However, the question that arose is as to whether the person, who had been part of the talk show being P.W.No.11, has chosen not to support the case of the prosecution. In his substantive version before the Court of law, the person in whose presence, he is admitting of having been an eye-witness to the incident, if choses to state otherwise before the Court, that the person has been speaking a blatant lie and that would have no effect or bearing. Without the background of the talk show conducted by GTPL, if independently, this very aspect is looked at, the eye-witness, if confides in any other person, the version, which he has eye-witnessed, the person with whom he has confided it, could not claim the same to have known first hand as his own version. Therefore, to him, it is a version coming through the eye-witness and it is indirect way of knowing the details. It is thus, the hearsay evidence for the party, who knows through the other and, therefore, even if all the prosecution witnesses connected with the electronic media, who got together with a good intent for conducting the talk show and, had desired to bring about the true story to the public, even if had come to know from P.W.No.11, who has spoken clearly and unequivocally under public gaze, if chose to resile his version, the subsequent version of those, who have heard from him, at the best, can support the prosecution's submission of perjury, but that in no manner, can replace the version of the eye-witnesses. On admissibility of this evidence as if it was the evidence of the eye-witness himself, electronic age would give the hope that once recorded in the form of electronic evidence and if an authenticated document is produced, the same has to be construed as his own version even if he changes the same later. Of course, at this stage, the admissibility of the electronic evidence shall need to be regarded. The court does not find any reason not to admit the DVD which has been found to have been produced with certificate as required under the law and has not been also held by the experts as tampered at all, there being many other nuances to this issue, straightway admitting this as a sufficient replacement of an eye-witness as an oral evidence before the Court may not be feasible.
G. Admissibility of Electronic Evidence
31. With regard to admissibility of electronic evidence, the decision of the Apex Court in the caseAnvar P.V. vs. P.K. Basheer and others, (2014) 10 SCC 473, requires consideration where the Court held that the admissibility of secondary evidence of electronic record depends upon sufficiency of condition, as prescribed under section 65(B). The Court also narrated those conditions and held that if primary evidence of electronic evidence is adduced i.e the original electronic record itself is produced in Court under section 62, then the same is admissible in evidence without compliance with conditions in section 65-B of the Evidence Act. The Court held that when secondary evidence of electronic record is produced, which is not the original electronic record, admittedly such statement has to be accompanied by a certificate as specified in section 65-B(4). It is mandatory pre-requirement and, thus, such certificate must accompany electronic record like DVD,VCD, Pen-Drive etc. and in absence of such certificate, secondary evidence of electronic record cannot be admitted in evidence. In the matter before the Apex Court, there was no such certificate in a petition to set aside the election of the first respondent under section 100(1)(b) read with section 123(4) of the Representation of the People Act, 1951 on the ground that alleged song, announcements and speeches made as part of election propaganda of first respondent, amounted to corrupt practice. These were recorded using some instrument and by feeding them into computer, CDs were made. While so doing, certificate in terms of section 65-B of the Evidence Act was not produced and the CDs since were not original, the Court held that they cannot be admitted in evidence as the mandatory requirements of Evidence Act had not been satisfied. According to the Apex Court, section 65-A and section 65-B are not general law, as contained in sections 63 and 65 and, therefore, general law shall yield to special law in section 65-A and 65-B. According to the Apex Court, these are the safeguards to ensure the source and authenticity of electronic records since they are more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. The Court also referred to admissibility of electronic records under the rule of evidence relating to the same, as accepted in UK and USA and held thus:-
"7. Electronic record produced for the inspection of the court is documentary evidence under Section 3 of The Indian Evidence Act, 1872 (hereinafter referred to as 'Evidence Act'). The Evidence Act underwent a major amendment by Act 21 of 2000 [The Information Technology Act, 2000 (hereinafter referred to as 'IT Act')]. Corresponding amendments were also introduced in The Indian Penal Code (45 of 1860), The Bankers Books Evidence Act, 1891, etc.
8. Section 22-A of the Evidence Act reads as follows:
"22A. When oral admission as to contents of electronic records are relevant.-Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question."
9. Section 45A of the Evidence Act reads as follows:
"45A. Opinion of Examiner of Electronic Evidence.-
When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000(21 of 2000)., is a relevant fact.
Explanation.-For the purposes of this section, an Examiner of Electronic Evidence shall be an expert."
10. Section 59 under Part II of the Evidence Act dealing with proof, reads as follows:
"59. Proof of facts by oral evidence.-All facts, except the contents of documents or electronic records, may be proved by oral evidence."
11. Section 65A reads as follows:
"65A. Special provisions as to evidence relating to electronic record: The contents of electronic records may be proved in accordance with the provisions of section 65B."
12. Section 65B reads as follows:
"65B. Admissibility of electronic records:
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: -
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether -
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, -
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section, -
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation: For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process." These are the provisions under the Evidence Act relevant to the issue under discussion.
13. In the Statement of Objects and Reasons to the IT Act, it is stated thus:
"New communication systems and digital technology have made drastic changes in the way we live. A revolution is occurring in the way people transact business." In fact, there is a revolution in the way the evidence is produced before the court. Properly guided, it makes the systems function faster and more effective. The guidance relevant to the issue before us is reflected in the statutory provisions extracted above.
14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
15. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
17. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence.
18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India.
19. It is relevant to note that Section 69 of the Police and Criminal Evidence Act, 1984 (PACE) dealing with evidence on computer records in the United Kingdom was repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999. Computer evidence hence must follow the common law rule, where a presumption exists that the computer producing the evidential output was recording properly at the material time. The presumption can be rebutted if evidence to the contrary is adduced. In the United States of America, under Federal Rule of Evidence, reliability of records normally go to the weight of evidence and not to admissibility.
20. Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield."
32. In the case ofSonu alias Amar vs. State of Haryana, (2017) 8 SCC 570, the question with regard to admissibility of electronic evidence was considered. The objection regarding mode/method of proof of call detail records (CDRs) of mobile phones recovered from accused was raised for first time before Supreme Court. It was a case of kidnapping for ransom and murder. The contention on the part of the accused that CDRs could not be proved under section 65-B of the Evidence Act, as admittedly they were not certified in accordance with sub-section (4). The Apex Court held that the same cannot be permitted to be raised at appellate stage as the objection relates to mode or method of proof. It is not in dispute that the CDRs are a form of electronic evidence, which are not inherently admissible in evidence. The objection is to the effect that they were marked before the trial Court without a certificate under section 65-B(4). The Court held that such objection has to be raised at the time of marking of document as an Exhibit. The Court also held that the crucial test of document whether the defect could have been cured at the time of making of the document and if an objection was taken to CDRs being marked without a certificate, the Court could have given prosecution an opportunity to rectify the deficiencies. With regard to the question as to whether the electronic evidence without certification, as provided under section 65-B, would be inadmissible and whether Anwar's case (supra) would be prospective in nature. The Court left the question open. The Court also referred to the decision ofState (NCT of Delhi) vs. Navjot Sandhu, (2005) 11 SCC 600, where there was no necessity of certificate for proving that electronic certificate under section 65-B. The Court held that all criminal Courts in this country are bound to follow the law as interpreted by this Court and there is no doubt that the judgment of the Apex Court in Anwar's case(supra) as to be retrospective in operation, unless the judicial "tool of prospective overruling" is applied. However, a retrospective application of the judgment is not in the interest of administration of justice and it would necessitate the reopening of large number of criminal cases.
32.1. The Court held thus:-
"34. The effect of overrule of a judgment on past transactions has been the subject matter of discussion in England as well. InR. v. Governor of H.M. Prison Brockhill, ex p. Evans (No. 2), (2000) 4 AllER 15, Lord Slynn dealing with the principle of prospective over ruling observed as under:
"The judgment of the Divisional Court in this case follows the traditional route of declaring not only what was the meaning of the section at the date of the judgment but what was always the correct meaning of the section. The court did not seek to limit the effect of its judgment to the future. I consider that there may be situations in which it would be desirable, and in no way unjust, that the effect of judicial rulings should be prospective or limited to certain claimants. The European Court of Justice, though cautiously and infrequently, has restricted the effect of its ruling to the particular claimant in the case before it and to those who had begun proceedings before the date of its judgment. Those who had not sought to challenge the legality of acts perhaps done years before could only rely on the ruling prospectively. Such a course avoided unscrambling transactions perhaps long since over and doing injustice to defendants."
35. This Court did not apply the principle of prospective overruling in Anvar's case. The dilemma is whether we should. This Court inK. Madhav Reddy v. State of Andhra Pradesh, (2014) 6 SCC 537held that an earlier judgment would be prospective taking note of the ramifications of its retrospective operation. If the judgment in the case of Anvar is applied retrospectively, it would result in unscrambling past transactions and adversely affecting the administration of justice. As Anvar's case was decided by a Three Judge Bench, propriety demands that we refrain from declaring that the judgment would be prospective in operation. We leave it open to be decided in an appropriate case by a Three Judge Bench. In any event, this question is not germane for adjudication of the present dispute in view of the adjudication of the other issues against the accused."
33. In a recent judgement, the Apex Court, in the case ofShafhi Mohammad Vs. State of Himachal Pradesh,2018 JC(SC) 57held and observed that in this age of digitization, there is increasing reliance on computer record in judicial proceedings. The Court held that as per the requirement of certificate under section 65-B(4), to make an electronic evidence admissible is not mandatory wherever the interest of justice was justified. The Court clarified the legal position on the subject of admissibility of evidence especially by a party, which is not in possession of the device from which the document is produced, such party cannot be required to produce certificate under section 65- B(4). The Court also said that wherever the interest of justice so justifies, applicability of requirement of certificate being procedural can be relaxed. The Apex Court referred to two English Laws, Civil Evidence Act, 1968 and Police and Criminal Evidence Act, 1984, dealing with the admissibility of electronic evidence, which have now been repealed in U.K.
34. In the case of Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and others rendered by the Apex Court in Civil Appeal Nos. 20825-20826 of 2017, the Division Bench deferred from Anwar. P.V.'s case and held that the requirement of certificate is not always mandatory and can be dispensed with in the interest of justice. It has been argued before this Court that the decision as held by the Apex Court in the case ofRojer Shashoua vs. Mukesh Sharma, (2017) AIR SC 3166that the decision and judgment can also be per incurrium. It is not possible to resile. It is the ratio of all previously pronounced judgments of co-equal or larger bench". The Supreme Court in the case of Arun Pandit Khotkar vs.Kailash K. Rao referred to Shafhi Mohammad(supra) in light of Anwar. P.V.'s case.
34.1. It can be seen that this witness P.W.No.11 had stated that he had never gone to the office of GTPL and he is not aware as to whether the interview had taken place. He had gone between 2:00 p.m. to 3:00 p.m, whereas, the interview was from 4:00 p.m. to 5:00 p.m., whereas according to P.W.No.27 and P.W. No.28, the interview was telecast live at 8:00 p.m. between 6:00 p.m. to 9:00 p.m. There was a funeral prosession of both the deceased and he was present all through out. This witness also had stated that he was interviewed alone on that day and clarified that Shri Prem Shanker Dave, Shivam's father was not present, whereas, according to P.W.No.28 both the guests were present. P.W.No.11 also deposed that after the incident, the police, media and the relatives of the deceased were in continuous contact with him, pressurizing him to state as they wished. The witness had alleged that he was given a written ready script to read and he was to state according to the script. Answers were tutored and he was to give those tutored answers. He further, has stated that he was taken in a police vehicle for interview and the police also had tutored this interview. According to the witnesses, the interview was managed, conducted and created by persons interested in involving Appellant and this happened in presence of police. Although his substantive evidence when examined, he is found to be the witness, who has been won over unfortunately as that happens in most of the criminal cases.
34.2. Insistence of law makers and particularly, of the Apex Court through its plethora of decisions to reduce dependence on human agencies and make use of advancement of technology would gain importance in all these matters and it is heartening to note that the investigation has not been rested only on ocular evidence, but, has travelled much beyond, in the instant case to ensure that other cogent evidence does not let the case of prosecution get weakened.
34.3. Less deterrence due to almost no prosecution for perjury and most of the time, adoption of leniency in awarding punishment as also because of very less punishment prescribed under the law (particularly under section 344 of the Code of Criminal Procedure) for hostile witnesses, this menace is ever increasing. This also has strong nexus with the greed of materialism and decreasing values of morality in the society which reduce many of the human beings to the purchasable commodities.
34.4. Moreover, here, if the opinion of the FSL is recorded, he has not found any tampering in the transcript, which has been sent in the form of a DVD, and found to be genuine.
35. Expert does not decide, but at the same time, even if he is not a witness of fact and his evidence is that of an expert for testing the accuracy of conclusion, the scientific criteria has to be adopted by the Court. The Apex Court in the case ofLekhraj @ Hari singh vs. State of Gujarat, (1998) CriLJ 396and in the case ofState of Himachal Pradesh vs. Jailal, (1999) CriLJ 4294has held as to whether the Court has stated that the report of an expert is a scientific opinion. The Court shall need to evaluate along with other evidence and there is no place for ipse dixit in such things. P.W.No.32 has not given any opinion as audio-video examiner and has given his opinion as a Scientific Officer. The transcript is at Exh.No.309 prepared by FSL Officer.
36. Vital would it be to refer to the evidence of P.W.No.15, Rameshbhai Khimjibhai Rathod, who has a business of Namkeen, in the name and style of Laxmi Ganthiya Rath. He lives at Akshardham Apartment, Satellite, Bodakdev, Ahmedabad. He starts his business at 7:00 clock and stops at 9:00 p.m. or 10:00 p.m. in the night. There are five persons, working, who sleep in the shop itself. He came to know about the incident on the next day, when his employees told him and, he was advised by an educated customer that his CCTV camera may contain some evidence and, therefore, he sent it to the police station. He also identified the DVD.
36.1. This DVD had been also taken in accordance with the investigation from Laxmi Gandhiya Rath, which was sent to the FSL and it was inquired from the FSL as to whether there was any tampering with the CCTV footage sent or collected. The DVD was examined and P.W.No.20 Mr. Trivedi and others had also done demo of Gypsy car and had approximated the vehicle speed at 112 kmph. Such report was at Exh.No.144. There was no tampering of DVD, as has been clearly opined by the authorities. This witness also has been extensively cross-examined and this also additionally corroborates that there was no tampering and the contents of the same are not to be doubted.
37. In light of the discussion, in relation to the electronic evidence, which has been produced, a serious objection has been raised. It appears that Lalit Rajeshbhai Gupta (P.W.No.11) in his statement before the learned Magistrate under section 164 has stated that on 25.02.2013 that he obtained a copy of CCTV footage from Laxmi Ganthiya Rath and gave it to the police. He admitted this aspect even in his cross-examination. This witness has turned hostile to the case of the prosecution.
38. Not only the hostile witness has spoken of the copy of CCTV footage having been taken, but the owner of the Laxmi Gandhiya Rath himself has deposed before the Court that he was not present at the time of incident. Some of the workmen, who also stayed overnight in his shop had witnessed the same and one of the vigilant customers also had advised him and he had sent a copy of CCTV footage to the police station. With regard to the hash value at the time of taking copy, naturally this witness, the oner of the shop, may not be aware of and, therefore he is not expected to take into account that aspect. Not only the person, who owns the machine has deposed before the Court, which will diminish the requirement of the certificate under section 65-B(4) of the Evidence Act, it also is apparent that reliance is also placed by the defence on the CCTV footage to urge before this Court the contributory negligence of the deceased. It has been emphatically contended before the Court that instead of taking a turn from round about, the victim has chosen to go breaking that rule and, therefore also, objection raised at the stage of the appeal, as also held in the Sonu alias Amar (supra), is found to be sustainable.
39. Thus, both the DVDs satisfy the requirement of section 65B(4) of the Evidence Act and the contents thereof cannot be doubted, as they are also being supported by other eye-witnesses. However, this Court is conscious of the fact that P.W.No.11, who claimed to have eye-witnessed the driver, had chosen not identify him before the Court of law and there is no test identification parade conducted by the Investigating Officer. This evidence may go in a major way to help him establishing the requirement of proceedings of perjury.
39.1. The conduct on the part of the Investigating Officer, particularly of Police Inspector Manoj Ramchandra Sharma (P.W.No.25)requires a careful examination. The officer, in his cross-examination, has pleaded that he did not remember whether he had obtained such chance prints and whether he had obtained from those places or not. He also admitted that if such finger prints are obtained of the accused, a note in case diary may be there. The blood sample of the accused also was taken as the case of the prosecution was that he was driving the vehicle in drunken condition, when, in fact, the report of the FSL did not support this theory, for his having surrendered before the investigating agency after 48 hours. According to the appellant, there are scientific tests available to check whether the alcohol was there in the blood of the appellant or not and moreover, if it was the case, then the investigating agency had to investigate in that direction.
39.2. P.W.No.25, admitted in his cross-examination, that he collected call data records of the mobile phone of the accused for the purpose of investigation and it was not produced with the chargesheet papers nor, at any point of time, produced during the trial. Hence, it is alleged by the appellant that the whole investigation and trial was misconceived and, therefore, also the judgment needs to be quashed.
39.3. The Court also notices from the material on the record that after once the appellant had presented himself before the investigating agency on completion of 48 hours, P.W.No.25, the Investigating Officer, investigating the case, had called the witnesses and in presence of the panch witnesses, he got the identification of the person done and panchnama to that effect has been drawn. It is quite surprising as to how the Investigating Officer, who is a seasoned police officer, on the post of Police Inspector in the matter like the present one, where the witnesses were not knowing the appellant accused, had chosen to flee away from the police soon after the serious act of causing deaths of two persons, shall act without taking the assistance of the Executive Magistrate, in whose presence generally, the Test Identification parade is conducted. As provided under section 9 of the Indian Evidence Act, he had recorded such Panchnama in presence of Panchas in a routine manner. Any officer, who would know, the basic requirement of the investigation also cannot have missed out on the facts when it comes to getting Test Identification done in a matter where the identity of the accused is required to be established. He simply cannot leave out the Test Identification Parade from his investigation considering the panchnama drawn at Exh.No.85, investigating Officer ought to have been more cautious in a matter like the present one that there will be a requirement of witnesses, who would identify the accused in presence of Executive Magistrate, who would conduct such T.I. parade. The complainant and other witness Dinesh Mafabhai Chaudhary (P.W.No.12) identified this appellant, and, even though the T.I. Parade before the Magistrate also is not a substantive evidence, instead of getting it only in presence of the panchas as he has got the same drawn, he could have surely done it as T.I. Parade, which is a step towards the investigation and for fulfilling the requirement under the law, under section 9 of the Evidence Act, substantive evidence of witness before the Court of law is the requirement. He ought to have been guided by the well laid procedure during the course of investigation and avoided attack of defence on this convict. It has been time and again specified by the Apex Court as to how the T.I. Parade is to be conducted.
39.4. Apt would be to refer to the relevant findings and observations of the Apex Court in the case ofRaja vs. State by Inspector of Police, (2019) 17 Scale 679, where the Apex Court held thus:-
"15. It has been accepted by this Court that what is substantive piece of evidence of identification of an accused, is the evidence given during the trial. However, by the time the witnesses normally step into the box to depose, there would be substantial time gap between the date of the incident and the actual examination of the witnesses. If the accused or the suspects were known to the witnesses from before and their identity was never in doubt, the lapse of time may not qualitatively affect the evidence about identification of such accused, but the difficulty may arise if the accused were unknown. In such cases, the question may arise about the correctness of the identification by the witnesses. The lapse of time between the stage when the witnesses had seen the accused during occurrence and the actual examination of the witnesses may be such that the identification by the witnesses for the first time in the box may be difficult for the court to place complete reliance on. In order to lend assurance that the witnesses had, in fact, identified the accused or suspects at the first available opportunity, the Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police 14 TIP which is part of the investigation affords a platform to lend corroboration to the ultimate statements made by the witnesses before the Court. However, what weightage must be given to such TIP is a matter to be considered in the facts and circumstances of each case.
16. Again, there is no hard and fast rule about the period within which the TIP must be held from the arrest of the accused. In certain cases, this Court considered delay of 10 days to be fatal while in other cases even delay of 40 days or more was not considered to be fatal at all. For instance, in Pramod Mandal v. State of Bihar (2004) 13 SCC 150) the accused was arrested on 17.01.1989 and was put up for Test Identification on 18.02.1989, that is to say there was a delay of a month for holding the TIP. Additionally, there was only one identifying witness against the said accused. After dealing with the decisions of this Court in Wakil Singh v. State of Bihar (1981) Suppl. SCC 28), Subhash v. State of Uttar Pradesh (1987) 3 SCC 231) and Soni v. State of Uttar Pradesh (1982) 3 SCC 368) in which benefit was conferred upon the accused because of delay in holding the TIP, this Court considered the line of cases taking a contrary view as under:
"18. Learned counsel for the State submitted that in the instant case there was no inordinate delay in holding the test identification parade so as to create a doubt on Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police 15 the genuineness of the test identification parade. In any event he submitted that even if it is assumed that there was some delay in holding the test identification parade, it was the duty of the accused to question the investigating officer and the Magistrate if any advantage was sought to be taken on account of the delay in holding the test identification parade. Reliance was placed on the judgment of this Court in Bharat Singh v. State of U.P. (1973) 3 SCC 896). In the aforesaid judgment this Court observed thus: (SCC p. 898, para 6) "6. In Sk. Hasib v. State of Bihar (1972) 4 SCC 773) it was observed by the Court that identification parades belong to the investigation stage and therefore it is desirable to hold them at the earliest opportunity. An early opportunity to identify tends to minimise the chances of the memory of the identifying witnesses fading away due to long lapse of time. Relying on this decision, counsel for the appellant contends that no support can be derived from what transpired at the parade as it was held long after the arrest of the appellant. Now it is true that in the instant case there was a delay of about three months in holding the identification parade but here again, no questions were asked of the investigating officer as to why and how the delay occurred. It is true that the burden of establishing the guilt is on the prosecution but that theory cannot be carried so far as to hold that the prosecution must lead evidence to rebut all possible defences. If the contention was that the identification parade was held in an irregular manner or that there was an undue delay in holding it, the Magistrate who held the parade and the police officer who conducted the investigation should have been cross-examined in that behalf."
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police 16 In the instant case we find that the defence has not imputed any motive to the prosecution for the delay in holding the test identification parade, nor has the defence alleged that there was any irregularity in the holding of the test identification parade. The evidence of the Magistrates conducting the test identification parade as well as the investigating officer has gone unchallenged. Learned counsel for the State is, therefore, justified in contending that in the facts and circumstances of this case the holding of the test identification parade, about one month after the occurrence, is not fatal to the case of the prosecution as there is nothing to suggest that there was any motive for the prosecution to delay the holding of the test identification parade or that any irregularity was committed in holding the test identification parade.
19. Learned counsel for the State has also relied upon the decision of this Court in Anil Kumar v. State of U.P. (2003) 3 SCC 569) wherein the test identification parade was held 47 days after the arrest of the appellants. This Court after considering several decisions of this Court including the decisions in Brij Mohan v. State of Rajasthan (1994) 1 SCC 413), Daya Singh v. State of Haryana9 and State of Maharashtra v. Suresh10 concluded that since the identifying witness was attacked by the assailants including the appellant and another, he had a clear look at the assailants. When his younger brother came to save him, he was killed by the assailants while the witness also received serious injuries. These were circumstances which would have imprinted in the memory of the witness the facial expressions of the assailants and this impression would not diminish or disappear within a period of 47 days. Similar was the case of the father and the mother of the identifying witness who had seen the assailants attacking their sons and one of their sons getting killed. In their memory also the facial expressions of the assailants will get
(2001) 3 SCC 468 10 (2000) 1 SCC 471 Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police 17 embossed. A mere lapse of 47 days would not erase the facial expressions from their memory.
20. It is neither possible nor prudent to lay down any invariable rule as to the period within which a test identification parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the courts of fact to decide in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the test identification parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identity, they being persons unknown to the victims. They, therefore, have only to avoid their arrest for the prescribed period to avoid conviction. Similarly, there may be offences which by their very nature may be witnessed by a single witness, such as rape. The offender may be unknown to the victim and the case depends solely on the identification by the victim, who is otherwise found to be truthful and reliable. What justification can be pleaded to contend that such cases must necessarily result in acquittal because of there being only one identifying witness? Prudence therefore demands that these matters must be left to the wisdom of the courts of fact which must consider all aspects of the matter in the light of the evidence on record before pronouncing upon the acceptability or rejection of such identification.
21. Lastly in Malkhansingh v. State of M.P. a three- Judge Bench of this Court of which one of us (B.P. Singh, J.) was a member, after considering various decisions of this Court observed thus: (SCC pp. 751-52, para 7) "7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, 11 (2003) 5 SCC 746 Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police 18 which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration." (emphasis supplied by us) This Court thus found the evidence as regards identification to be trustworthy and dismissed the appeal preferred by the accused. "
40. So far as the call data record is concerned, he had collected it within 48 hours and prior thereto, surely could have been placed as the part of the material of chargesheet. Importance of the call data record cannot, in the present electronic age, undermined. Presence of appellant soon after his fleeing away from the place of accident, contacts he made soon thereafter and the places where he went and any attempt made to overreach the process of law could have been easily on record with this data.
40.1. This Court (Coram: Anant S. Dave, as he then was & Ms. Sonia Gokani, J.J.)in Criminal Miscellaneous Application No. (for leave to Appeal) No.8036 of 2014 in Criminal Appeal No.729 of 2015 has in respect of Call Data Records stated thus:-
"The CDR contains data fields that describe a specific instance of telecommunication transaction minus the content of that transaction. CDR contains attributes, such as [a] calling party; [b] called party; [c] date and time; [e] call duration; [f] billing phone number that is charged for the call; [g] identification of the telephone exchange; [h] a unique sequence number identifying the record; [i] additional digits on the called number, used to route the call; [j] result of the call ie., whether the same was connected or not; [k] the route by which call left the exchange; [l] call type [ie., voice, SMS, etc.].
Call data records also serve a variety of functions. For telephone service providers, they are critical to the production of revenue. For law enforcement, CDRs provide a wealth of information that can help to identify suspects, in that they can reveal details as to an individual's relationships with associates, communication and behavior patterns and even location data that can establish the whereabouts of an individual during the entirety of the call. For companies with PBX telephone systems, CDRs provide a means of tracking long distance access, can monitor telephone usage by department; including listing of incoming and outgoing calls. Relevant would be also to refer to Mobile Phone Tracking and phone positioning briefly at this stage.
The mobile phone tracking refers to attaining of the current position of a mobile phone, stationary or moving. Localization may occur either via multi-lateration of radio signals between the radio towers of the network and the phone or simply via GPS. To locate the phone using multi-lateration of radio signals, it must emit atleast the roaming signal to contact the next nearby antenna tower, but the process does not require an active call. GSM is based on the signal to nearby antenna masts. Mobile positioning includes locations-based services that disclose the actual coordinates of a mobile phone bearers and it is the technology used by telecommunication companies to approximate the location of a mobile phone and thereby also its user. It is more properly termed as locating rather than positioning. The technology of locating is based on measuring power levels and antenna patterns and uses the concept that a powered mobile phone always communicates wirelessly with one of the closest base stations, so knowledge of the location of the base station implies the cell phone is nearby. Whereas, the advanced systems determine the sector in which the mobile phone resides and roughly estimate also the distance to the base station. Further proximation can be done by interpolating the signals between adjacent antenna towers. Qualified services may achieve a precision of down to 50 meters in urban areas, where mobile traffic and density of antenna towers is sufficiently high. Rural and desolate areas may see miles between base stations and therefore possibly determine locations a little less precisely.
In order to route calls to a phone, the cell towers listen for a signal sent from the phone and negotiate which tower is best able to communicate with the phone. As the phone changes location, the antenna towers monitor the signals and phone is roamed to an adjacent tower as appropriate. By comparing the relative signal strength from multiple antenna towers, a general location of a phone can be roughly determined. Other means make use of the antenna pattern, which supports angular determination and phase discrimination. Newer phones may also allow the tracking of the phone even when turned on and not active in a telephone call.
In a simpler language, it can be said that the technology can be best put to use in the form of CDRs which contains data fields describing various details, which also includes not only the phone number of the subscriber originating the call and the phone number receiving such call etc., but, the details with regard to the individual's relationships with associates, the behavior patterns and the whereabouts of an individual during the entirety of the call.
The whole purpose of CDR is not only to establish the number of phone calls which may be a very strong circumstance to establish their intimacy or behavioral conduct. Beyond that, such potential evidence also can throw light on the location of the mobile phone and in turn many a times, the position and whereabouts of the person using them with the aid of mobile phone tracking and phone positioning, location of mobile phone and its user is feasible. As the mobile phone ordinarily communicates wirelessly with the closest base station. In other words, ordinarily, signal is made available to a mobile phone from the nearest Mobile tower. In the event of any congestion or excessive rush on such mobile tower, there is an inbuilt mechanism of automatic shifting over to the next tower and if access is also not feasible there, to the third available tower. This being largely a scientific evidence it may have a material bearing on the issue, and therefore, if such evidence is established scientifically before the Court concerned, missing link can be provided which more often than not get missed for want of availability of credible eye-witnesses. We have noticed that in most of the matters these days, scientific and technical evidence in the form of Call Data Record is evident. However, its better and further use for the purpose of revealing and establishing the truth is restricted by not examining any witness nor bringing on record the situation of the mobile towers. Such kind of evidence, more particularly in case of circumstantial evidence will be extremely useful and may not allow the truth to escape, as the entire thrust of every criminal trial is to reach to the truth. Ratio and the observations of the Apex Court in a recent decision of the Apex Court in case ofDharam Deo Yadav vs. State of Uttar Pradesh, (2014) 5 SCC 509requires a reference at this stage, which reads thus-
27. Crime scene has to be scientifically dealt with without any error. In criminal cases, especially based on circumstantial evidence, forensic science plays a pivotal role, which may assist in establishing the element of crime, identifying the suspect, ascertaining the guilt or innocence of the accused. One of the major activities of the Investigating officer at the crime scene is to make thorough search for potential evidence that have probative value in the crime. Investigating Officer may be guarded against potential contamination of physical evidence which can grow at the crime scene during collection, packing and forwarding. Proper precaution has to be taken to preserve evidence and also against any attempt to tamper with the material or causing any contamination or damage.
30.Criminal Judicial System is this country is at cross-roads, many a times, reliable, trustworthy, credible witnesses to the crime seldom come forward to depose before the court and even the hardened criminals get away from the clutches of law. Even the reliable witnesses for the prosecution turn hostile due to intimidation, fear and host of other reasons. Investigating agency has, therefore, to look for other ways and means to improve the quality of investigation, which can only be through the collection of scientific evidence. In this age of science, we have to build legal foundations that are sound in science as well as in law. Practices and principles that served in the past, now people think, must give way to innovative and creative methods, if we want to save our criminal justice system. Emerging new types of crimes and their level of sophistication, the traditional methods and tools have become outdated, hence the necessity to strengthen the forensic science for crime detection. Oral evidence depends on several facts, like power of observation, humiliation, external influence, forgetfulness etc., whereas forensic evidence is free from those infirmities. Judiciary should also be equipped to understand and deal with such scientific materials. Constant interaction of Judges with scientists, engineers would promote and widen their knowledge to deal with such scientific evidence and to effectively deal with criminal cases based on scientific evidence. We are not advocating that, in all cases, the scientific evidence is the sure test, but only emphasizing the necessity of promoting scientific evidence also to detect and prove crimes over and above the other evidence.
31. Scientific evidence encompasses the so-called hard science, such as physics, chemistry, mathematics, biology and soft science, such as economics, psychology and sociology. Opinions are gathered from persons with scientific, technical or other specialized knowledge, whose skill, experience, training or education may assist the Court to understand the evidence or determine the fact in issue. Many a times, the Court has to deal with circumstantial evidence and scientific and technical evidence often plays a pivotal role. Sir Francis Bacon, Lord Chancellor of England, in his Magnum Opus put forth the first theory of scientific method. Bacons view was that a scientist should be disinterested observer of nature, collecting observations with a mind cleansed of harmful preconceptions, that might cause error to creep into the scientific record. Distancing themselves from the theory of Bacon, the US Supreme Court inDaubert v. Merrell Dow Pharmaceuticals, Inc.,1993 509 US 579held as follows:-
Science is not an encyclopedic body of knowledge about the universe. Instead, it represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement."
41. It is true that some of these lacuna in the investigation have been much highlighted in the cross-examination of the witnesses so also during the course of submissions. Non-matching of chance prints obtained from steering wheel, gear and the doors of the vehicle also has been emphasized, in the opinion of this Court, some of these aberrations cannot, in any manner, make a dent in the case of the prosecution, which has been established by robust circumstantial evidences.
41.1. It is unthinkable that the owner of the vehicle whose car has succeeded in killing two young boys and with so much of an uproar in the society, chooses not come forward to disclose the name of the driver. It is not be forgotten that father of the appellant attempted to mislead the police and therefore, the criminal complaint also is lodged against him and he is facing that prosecution. Section 313 of the Code of Criminal Procedure has a vital role to play where incriminating evidence is putforth before the accused. This Court noted on a careful scrutiny that elaborate further statement has been recorded of the accused, where he denied simply his knowledge about the driver and stuck to the version that because he is an owner, he is falsely involved.
41.2. The First Information Report specifies that driver to be young boy of 24 years. The policy of insurance and other RTO records also confirm the appellant to be the owner. The description given by P.W.No.11 in First Information Report and also in his interview conform to this description. The subsequent conduct of the driver, who caused this incident also speaks a volume of his conduct. Although it is contended that he does not claim a good character and ,therefore, his bad character cannot be brought into limelight as the Evidence Act does not permit the same, the fact remains that he has chosen to shield behind the hostile witness and his unscrupulous behaviour and also has claimed to be not involved at all in the entire incident. Therefore, his criminal antecedents also shall need to be regarded by the Court, which may not be determinative of his involvement in the incident in question directly, but that would be a very strong circumstances staring at his face. With this the principle of res jestae shall need to be regarded.
42. The conduct of the accused if is regarded here reference will be needed of section 8 of the Indian Evidence Act where the previous and subsequent conduct of any party to any proceedings in reference to any fact in issue or relevant thereto shall need to be regarded. Worthwhile, it would be to also to refer to section 6 of the Indian Evidence Act, which speaks of the relevancy of facts forming part of the same transaction.
42.1. Section 6 of the Indian Evidence Act reads thus:-
"6. Relevancy of facts forming part of same transaction.-Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
(b) A is accused of waging war against the 1[Government of India] by taking part in an armed insurrection in which property is destroyed, troops are attacked, and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.
(d) The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact."
43. Adrian Keane writes " res jestae, it has been said, is a verse adopted to provide respectable look for a variety of cases to which no formula of precision can be applied ". Under the common law doctrine of res jestae would mean the fact or a statement of fact or opinion, which is so closely associated in time, place and circumstance, that same act or event which is in issue can be said to be forming part of the said transaction as the act or event which is in issue, is itself admissible in evidence. It also said that all details of criminal transactions are relevant to the case, where the prosecution, as being part of the res jestae rule against the admission of hearsay evidence. As per Lord Normand in case of"Teper v. R.,1952 AC 480, " The rule against the admission of hearsay evidence, the attempts on certain carefully safeguarded exceptions. One of which is that the words may be proved when they form part of the res jestae (the rule) appears to rest ultimately on two prepositions, that human utterance is both a fact and a means of communication, and that human action may be so interwoven with words that significance of the action cannot be understood with the correlative words and the disassociation of the words from the action would impede the discovery of truth but the judicial applications of these two prepositions, which do not always combine harmoniously in a general principle.
44. In the case ofMohd. Islam vs. State of U.P., (1993) CriLJ 1736witness had deposed that immediately after occurrence, witness came out in disturbed condition, who said that the accused had shot her aunt and witness further stated that he saw the accused with pistol in his hand throwing persons on the spot that he would kill them like deceased victim. His evidence was already admissible under section 6 of the Evidence Act. The evidence, thus, which is also connected with same transaction, cannot be said to be inadmissible or irrelevant.
45. This entire evidence, which has been discussed hereinabove, led to the single most conclusion, of the accident having occurred at around 12:15 a.m. midnight involving BMW car bearing registration Number CH-1-AE-9360. The speed of the vehicle could be gathered not only from the friends of the deceased Dinesh and Lalit, but also from Mr. Mitesh Kiranbhai Shah, who also was a victim. In that manner, his Assent car was also damaged while overtaking him, which is before the incident took place. It was from the wrong side that the overtake was done and the left hand side of his vehicle also got damaged. It was assessed to the tune of Rs. 10,000/- to Rs.15,000/-. He also witnessed that both the boys flung in the air at the distance of about 14 to 15 feet, whereas the friends of both the deceased Lalit and Dinesh were on Kinetic Honda owned by Rahul, since Rahul was driving Pulsar with Shivam, who was pillion rider. They had slowed down lightly when Pulsar bike was hit and dragged throwing both the riders in the air resulting into death of Shivam and Rahul.
46. Evidence of P.W.No.18 Dr. Shailesh Patel, Medical Officer of General Hospital, Sola examined the accused and the document at Exh.123, Yadi of treatment (Exh.No.124), Exh.No.125 the medical case papers and Exh.No.126-forwarding of FSL samples, when are taken into account, they also further indicate the injuries on the body of the appellant. Such injuries are often noticed when air bags get opened. It is also a matter of scientific research, which has been well established that with greater impact of opening of air bag, such injuries, as are found on the person of the appellant, are feasible.
46.1. It is attempted to be explained as the injuries sustained at the time of man-handling him. However, the police officers have confirmed that there were no such instances, which led to such nature of injuries, as prescribed in the certificate. The age of the injuries also have been specified by the doctor.
47. Medical evidence at this stage is required to be regarded.
a) P.W. No.1, Dr. Dilip Patel, Medical Officer of Sola Hospital carried out post-mortem examination of Shivam, 25 years old victim on 25.02.2013. Post mortem note (Exh.No.65) shows 11 injuries in Column No. 19. There is also subdural haemorrhage over occipital region. According to him, the death was on account of shock due to sustained injuries all over the body. He also concluded that in ordinary course of nature, these injuries were sufficient to cause death of a person. He confirmed that internal and outer blood loss due to these injuries was a major contributing factor.
b) This witness also has been cross-examined exhaustively by the defence and he was particularly questioned with regard to the examination of consumption of alcohol by the deceased. He agreed that in the post mortem report , the doctor is required to note the influence of alcohol. However ,in absence of any material indicating that the deceased was under the influence of alcohol, nothing has been mentioned in the post mortem note, as replied by him.
c) Dr Prafulla P.W. No.2, the Medical officer of Sola hospital, in relation to the post-mortem report carried out by her of one of the victims, Rahul, aged 22 years on 27.02.2013 is examined. According to her, death has occurred on account of injuries all over the body and its complications. These injuries were sufficient to cause death in ordinary course of nature. She noted fractures of Tibia and Fibula and Radius and Ulna and other vital injuries . She noted fractures of fourth and fifth rib of the left side and fracture of right parietal side of skull . She noted 22 injuries shown in column No. 17 and all the injuries were found ante mortem.
d) This witness in her cross-examination has been asked many questions in an attempt to show possibility of defects in her conclusions. She agreed that fracture of Tibia and fibula weather were comminuted fractures or not, has not been mentioned and their simple fractures may not result in death but comminuted fracture. She also has not examined whether this boy was under the influence of alcohol. She also agreed to the possibility that extra dural haemorrhage is possible with thin blood and for somebody who is a habitually drinking. She also agreed that attempt to revive a serious patient can cause the injuries of rib. Positive depositions of hers are not in any manner assailed by attempts to create possibilities in the crossexamination.
e) Depositions of both these doctors who performed post mortem unequivocally establish that death of Shivam and Rahul respectively on 25.02.2013 and 27.02.2013 was an account of injuries sustained by vehicular accident by both of them, as are reflected in detail by both the doctors. Moreover, there are papers of Sanjeevani hospital as in case of Rahul the treatment continued for two days and concised efforts were made to save his life. These injuries since were in ordinary course of nature sufficient to cause death these deposition leave not a semblance of doubt that directly as the impact of the incident in question, at the mid night of 24.02.2013, both these young men have succumbed to the injuries sustained leading to their permanent exit in their prime youth.
48. This Court has also examined the evidence of P.W.No.14 Dr. Hansaben Patel, who has been examined to establish serological report prepared on the basis of samples sent to her, which included blood sample of Vismay and cotton taken after noticing blood on car. Blood group of Vismay is 'O', however, cotton when examined, there was insufficient blood group. Her report Exh.No.106 does not lead anywhere although. Speed of the Vehicles & Experts
49. This brings this Court to the evidence adduced in relation to speed of the vehicle. Yadi had been sent to RTO, Ahmedabad vide Exh. Nos.114 and 118. The FSL officers, when came at the site of accident, the details have been furnished to them. The air bags of BMW had been opened and, therefore, the Yadi was sent to the dealer of Parsoli Motors at Thaltej (a dealer of BMW cars). The original Yadi is at Exh.No.130 signed by the responsible officer of Parsoli Motors. The dealer had examined the vehicle and also sent a report with regard to speed. The damage of the impact of the vehicle involved also had been given along with the evidence of RTO Officer. P.W.No.10 Faizal Yakub Munshi at Exh. No.106 had driven a demo car, which was identical to the car, which met with an accident and reported that the vehicle driven was at the speed of 110 to 120 kmph vide its report at Exh.No.132. The same had been recorded in video and the same was enclosed with the report.
50. It is also concluded that on severe impact, the airbags are always inflated in such a way that neither driver nor passenger has contact with the steering wheel or instrument panel. In a high impact accident, the airbags are inflating quickly and to their fullest extent which was the case here. Many questions in cross-examination are raised to assail this positive evidence and much is argued before this Court, however, this Court sees no malice on the part of dealer, nor any oblique reason for it to conclude on speed and high impact. Reasons given are also found scientific and satisfactory. Trial Court committed no error in relying on this evidence for the purpose of establishing higher speed.
H. Contributory Negligence:-
50.1. Learned counsel for the appellant has reiteratively urged this Court to consider the contributory negligence of the victim, who was driving the Pulsar motorcycle and has not followed the rules. He has questioned the speed of BMW car and the method adopted by the Sate in proving such speed. According to him, it would have been difficult for driver as to driving the vehicle on straight road to presume that any one would, in breach of the traffic rules, shall enter the straight road by taking a wrong turn and if any accident occurred, in such circumstances, no knowledge can be attributed to the appellant that he may have contemplated some one to die. Therefore, according to learned counsel, in absence of such knowledge, case shall not fall under section 304(II) of the Indian Penal Code. At the best, even if it is held that the appellant was driving the vehicle, the case would fall under section 304A. He has also alleged of fallacy and biased investigation and urged that finger prints were obtained from steering wheel, gears and doors, which do not match with those of the accused. P.I. Manoj Ramchandra Sharma (P.W.No.25) also had admitted that finger prints, if would have been obtained, a note in the case diary must have been there. The case of drunken driving is also not proved as the blood sample of the accused is sent to the FSL, has resulted into a negative report (Exh.No.217). Even if he surrendered after 48 hours, there are tests available to find out the presence of alcohol in his blood. Call Data Record, though are said to have been collected, they have not been produced during the trial.
51. According to learned Additional Public Prosecutor for the State, the contributory negligence pleaded by the appellant would have no basis to stand inasmuch, as his speed, as could be caught in the CCTV camera and on the basis of the dummy test drive of BMW by the Manager of Parsoli Motors and in Gypsy by the police with FSL officer, clearly reflect his excessive speed. There are eye-witnesses to that effect and if he has acted in complete breach of the notification on road, which is all along witnessing traffic, even at mid-night, this can never be a mitigating circumstance in either sentencing the appellant or in reducing the sentence.
52. This Court has closely perused the evidence, which has come on the record through Lalit Rajeshbhai Gupta (P.W.No.11), the witnesses, who turned hostile to the case of the prosecution is pillion rider and friend of Dinesh Mafabhai Chaudhary and Mr.Mitesh Kiranbhai Shah(P.W.No.13), whose car had been also damaged just a few seconds before the accident on account of speed and wrong overtaking by the driver of this vehicle of BMW car. The Court has also further examined closely the evidence of Faizal Yakub Munshi, the Manager of Parsoli Motors and others so also of owner of Laxmi Ganthiya Rath, Laxmi Ganthiya Rath (P.W.No.15)and FSL Officer, who had, with the police, taken a dummy drive of Gypsy.
53. Undoubtedly, there is a circle at T-Junction with diameter of 02 to 03 feet and the vehicle coming from towards Mansi Circle and heading towards Premchandnagar road or towards Sandesh Press building, shall need to take a turn from the right hand side and then to proceed towards Premchandnagar road. It is also not in dispute that neither of the motorcyclist victims was wearing helmet. The CCTV camera has caught the accident and the footage, when is seen along with the deposition of both the friends of the victims, it is quite clear that Rahul Patel, who was driving the Pulsar Motorcycle of Lalit Rajeshbhai Gupta has not taken the turn from the right hand side of the circle and instead, has turned before that circle to move towards Premchandnagar road, that surely can be said to be lapse on the part of the victim in driving the vehicle. However, that by itself will not condone nor take away the gravity of the conduct of the convict nor would that lead the Court to accept the submission that this witness under section 304(II) should be quashed, inasmuch as, as per the Motor Vehicle Rules, at a T-Junction or cross-road, vehicle driver should allow those vehicles on the road side giving them a thoroughfare by stopping for a while and to go forward only if there are no vehicles in waiting. Moreover, bigger vehicle is always expected to be more conscious and has high responsibility towards smaller vehicles.
54. Again, as discussed hereinabove, the method adopted in carrying out the demo drive and the test drive by the FSL officer as well as Manager of the Parsoli Motors, even if do not lend 100% correct result, then also there is consensus in both the reports of the vehicle being driven at the speed of 110 to 120 meters.
55. The notification dated 27.09.2006 regarding speed issued by Police Commissioner makes it abundantly clear that in a city area, the speed of the four wheelers cannot exceed 60 kmph. His driving the vehicle from the wrong side and high speed is quite evident from the deposition of P.W.No.15 Mitesh Kiranbhai Shah. Again, his vehicle has dragged the motorcycle for 10 feet and both the motorcyclists are flung in the air and his own vehicle got hit by dashing against the tree. His front portion of the car was damaged severely and air bags also had opened.
55.1. As can be noticed from the deposition of Mr.Faizal Yakub Munshi, opening of air bag, on account of the impact in BMW car could be possible only if the vehicle met with an accident and had, therefore, has an additional reason for them to conclude the excessive speed of the vehicle.
55.2. Dr. Shailesh Patel (P.W.No.18) Medical officer, Sola, who examined Appellant has recorded history given by him (which, of course, he has challenged in his further statement) and also detailed injuries noticed due to opening of Airbag of vehicle Exh.125/123 are report and yadi and he also sent him for surgical and orthopedics references, as the appellant complained of pain due to various injuries due to the accident.
56. Driver, who drives the vehicle at such a speed in the city area is presumed to have a full knowledge of his conduct that it is likely to cause injury leading to the death of a person. So far as the question whether section 304, which provides for punishment for culpable homicide not amounting to murder, could be attracted or not and whether the framing of charges under section 304(II) would be sufficient notice to the appellant convict, during the course of the trial and whether, in fact, this is a case falling under the culpable homicide not amounting to murder.
57. The contention raised by learned advocate for the appellant that this was a contributory negligence on the basis of the panchnama of place of offence and the manner in which the accident had occurred. Although much resistance is shown in respect of the admissibility of CCTV footage of Ganthiya Rath, relying on the very DVDs, it has been attempted to explain the speed as well as negligence also on the part of the deceased in driving the two-wheeler. This version of the appellant will not find favour with this Court, inasmuch as, the motor vehicular rules very clearly point out that at the cross-roads or at circle, the vehicles coming towards right hand side shall be first permitted to pass.
58. Admittedly, while going towards Judges Bungalows to Mansi circle at T- junction, the BMW car driver ought to have permitted the vehicles coming towards Mansi Circle and going towards Sandesh Press to firstly go. It is true that the instead of taking a turn from the round about, Pulsar Bike driver, as per the CCTV footage, had taken a turn and was attempting to go straight; to that extent , it could be said to be his negligence and the vehicle coming from towards Judges Bungalows would not expect two-wheelers to take a turn without encircling the round abouts. To that extent, the submission made, may seem convincing on the part of the learned advocate for the appellant. The Court is of the opinion that the turning which had been taken by the driver comes before the circle, which is a very simple circle of about two to three feet radius. As the vehicular rules would expect the person driving the car or any other vehicle to allow the vehicles on the right hand side to first pass, there ought to have been a halt on the part of the BMW car. Even without anyone knowing this rule, the vehicular speed shall need to be reduced, essentially wherever either the T-Junction or the cross-roads come. He has neither slowed down nor bothered to allow the vehicles, which were around the round about to firstly go and he not only has done the overtake from the wrong side of the Assent car, but was unable to control the vehicle where after hitting the car had dashed straight into the tree. The report had been given specifying that his speed was of more than 100 kmph,which is much challenged and debated, the same will be discussed later on, at an appropriate time. It is suffice to note that his was an excessive speed.
59. It is quite apparent from the versions of the witnesses and the CCTV footage very clearly reflect that the appellant never stopped at the T-Junction and was in a hurry. He did an impermissible act of overtaking from the left hand side of the Assent car of P.W.No.13. He also is not found to have halted down on the cross-roads, which every driver is supposed to do. This has been also adopted by the report of CCTV camera and also the speed test, which has been carried out by the investigating agency. Moreover, it is a settled law that the bigger vehicle is required to be more careful of the smaller vehicle. This is not a motor vehicle accident case, where the Court needs to assess the contributory negligence of the other vehicle in terms of percentages. Even if there is a percentage assess in a criminal trial, the discussion, which has been made hereinabove clearly and unequivocally establishes the sheer negligence on the part of driver in driving the vehicle at such a speed. The Court also cannot be oblivious of the fact that he has chosen to run away from the place and if the driver of the vehicle was scared, apprehensive of the crowd and the public that may gather with this scale of accident, Vastrapur police station is just nearby, he could have gone straight to the police station, but that has not happened.
60. The appellant had knowledge that in a city area the vehicle cannot be driven at the speed of 110 to 112 kmph. The complainant and others, who had eye-witnessed the incident, have found the speed of the vehicle to be excessive. The opinion of the FSL does not show any brake affect either on the front or the rear tyre. The BMW car has hit on the left hand side of the motorcycle and it halted after dashing with the tree. Even the RTO had opined that the car speed was more than the Notification of the Police Commissioner and forensic report, which though much challenged, had shown the speed to be 112 kmph. In these circumstances, when the accident had happened, in stead of making necessary arrangement for the medical treatment for the injured or intimating the police, the person has chosen to run away and has breached clearly these provisions.
61. Section 134(1)(A) of the Motor Vehicles Act is reproduced as unders:-
134. Duty of driver in case of accident and injury to a person.-When any person is injured or any property of a third party is damaged, as a result of an accident in which a motor vehicle is involved, the driver of the vehicle or other person in charge of the vehicle shall -
(a) unless it is not practicable to do so on account of mob fury or any other reason beyond his control, take all reasonable steps to secure medical attention for the injured person, 1[by conveying him to the nearest medical practitioner or hospital, and it shall be the duty of every registered medical practitioner or the doctor on the duty in the hospital immediately to attend to the injured person and render medical aid or treatment without waiting for any procedural formalities], unless the injured person or his guardian, in case he is a minor, desires otherwise;
(b) give on demand by a police officer any information required by him, or, if no police officer is present, report the circumstances of the occurrence, including the circumstances, if any, for not taking reasonable steps to secure medical attention as required under clause (a), at the nearest police station as soon as possible, and in any case within twenty-four hours of the occurrence; 2[(c) give the following information in writing to the insurer, who has issued the certificates of insurance, about the occurrence of the accident, namely:-
(i) insurance policy number and period of its validity;
(ii) date, time and place of accident;
(iii) particulars of the persons injured or killed in the accident;
(iv) name of the driver and the particulars of his driving licence. Explanation.-For the purposes of this section the expression "driver" includes the owner of the vehicle.]"
62. In exercise of the powers conferred by section 118 of the MV Act, known as the Rules of the Road Regulations, 1989, the Central Government has made regulations for driving the motor vehicle. They have come into force from 01.07.1989, which insist on the driver of the motor vehicle to drive the vehicle as close to the left side of the road as may be expedient and to allow all traffic, which is proceeding in the opposite direction to pass on his right hand side.
a) Regulation 6 also provides for prohibition of overtaking in certain cases, which says that the driver of a motor vehicle shall not pass a vehicle travelling in the same direction as himself, if his passing is likely to cause inconvenience or danger to other traffic or if the driver ahead of him has not signalled that he may be overtaken.
b) Regulation 4 also provides that, except as provided in Regulation 5, driver of the motor vehicle shall pass to the right of all traffic proceeding in the same direction as himself.
c) Regulation 5 provides that the driver of the motor vehicle may pass to the left of a vehicle the driver of which having indicated an intention to turn to the right has drawn to the centre of the road and may pass on either side.
d) Regulation 8 provides caution at road junction to say that the driver of a motor vehicle shall slow down when approaching at a road intersection, a road junction, pedestrian crossing or a road corner, and shall not enter any such intersection, junction or crossing until he has become aware that he may do so without endangering the safety of persons thereon.
e) Regulation 9 provides that the driver of the motor vehicle shall, on entering road intersection at which traffic is not being regulated, if the road entered is a main road designated as such, give way to the vehicles proceeding along that road, and in any other case give way to all traffic approaching the intersection on his right hand.
62.2. These regulations, when are applied to the facts, which have emerged on the record, they clearly and unequivocally go to indicate from the oral evidence given by the witnesses as to how the appellant had in a speed overtaken Assent car from the left hand side, which is impermissible under the road regulations and being fully aware of the intersection, where round about is situated, it was the duty of one and all to slow down and, more particularly, considering Regulation 9, which insists on driver of a motor vehicle to give way to all traffic approaching the intersection on his right hand side.
63. As is apparent from the documentary evidence in the form of notification issued by the Ahmedabad Police Commissioner, it requires a speed of the four wheeler vehicle to be not more than 60 kmph in any case in the city area where this accident has occurred. Once notification is issued, it is presumed that everyone is made aware of the same and any breach shall need to be regarded as violation of the said notification.
64. It is also mandatory and it is also found that hoardings of the speed limit at a regular interval in the city and the highways are maintained for the people to be aware of and to act. However, that cannot, in absence of such marking, ever permit driving the vehicle at more than required speed of the vehicles. The obligation is any manner less of the persons concerned. Those who have valid licence and those who are driving on a regular basis in the city are expected to know the traffic rules and any breach of the same would not and not only lead to the offence under the Motor Vehicles Act, but even without entering into that realm, the knowledge on the part of the appellant could surely be attributed that this excessive speed can lead to the death of a person. The case, in any which way, cannot be restricted and limited to the provision of section 304A of the Indian Penal Code.
65. Therefore, his case is not merely of criminal negligence, but the knowledge as is attributable under section 304(II).
65.1. P.W.No.17, FSL Scientific Officer examined vehicle involved in accident, BMW Car CH-01-AE-9360 and Pulsar Bike GJ-1-FR-711. He also presented photos and his reports at Exh.119/120 and deposed how chassis of BMW car was bent, which is impossible without a substantial impact. There were no break marks he found on tyre. The way skin of tree trunk was also noticed on chassis, he concluded an excessive speed. On left side from middle of Chassis pulsar bike petrol tank was found damaged. Damage to the chassis also was significant.
66. The Court cannot be unmindful of the fact that the parties have compromised and the appellant has also served sentence for 1 years. It is after intervention of the Apex Court that he has been granted liberty, but at the same time, it is a case of not only rash driving, but also of subsequent conduct on the part of the appellant, who had chosen to disregard, not only the settled legal principles of medical arrangement for victims to be removed to the hospital, but also of reporting to the police or presenting himself before the police authority. On one hand, the compromise has been arrived at by paying handsome amount to the victims families, and yet, the appellant has taken all possible defence available at his end and resisted the appeal and questioned even the identity of his seriously as also referred to hereinbefore. The order of the Apex Court is quite clear and the possibility cannot be ruled out that in a desperation to enjoy the liberty after 1 years of imprisonment, he had agreed not to question the identity in the criminal proceedings and, yet that aspect also has been strongly contended. Undoubtedly, it is the right of the appellant to question all possible legal aspects. However, when this Court is considering the request on humanitarian grounds and the aspect of compromise as mitigating circumstance as a reduction of sentence, the Court cannot disregard the conduct of a person in a post accidental period. He has antecedents, which have been placed on record by the Sate, also revealing that in the past, he had admitted the guilt under the Gujarat Prohibition Act and under section 185 of the Motor Vehicles Act, where he was fined and then his act was condoned without sending him to the prison, as permitted under the law. This also had happened at Premchandnagar road, while he was driving his BMW car and on his admission, fine was imposed under section 185 of the Motor Vehicles Act.
67. It has been pleaded and reiteratively argued before this Court that the learned Sessions Judge could not appreciate evidence aptly and that even presuming, without admission, that appellant original accused was driving the said BMW car at the speed of 110 kmph at midnight on a straight road, the speed cannot be held to be excessive and it would have been difficult for the driver to presume that anyone, in breach of traffic rules, would be entering the straight road by taking a wrong turn and if any accident occurs, due to such act of motorcyclist, according to the appellant, no knowledge can be attributed on the part of the appellant that somebody can die on account of his act of negligence. It is also urged that the learned Sessions Judge also failed to appreciate that in absence of such knowledge, the case would not fall under section 304(II) and the appellant was not driving the said vehicle, but, even if it is held that the appellant was driving the said vehicle, at the best, it was a case falling under section 304A of the Indian Penal Code. As discussed in the aforementioned judgement, the prosecution's evidence, which it has laid, established on record by way of cogent, convincing and reliable evidence that the vehicle was in excessive speed at the time when the incident occurred. It is not only the eye witness, who has turned hostile to the case of the prosecution later, but there are other witnesses, as discussed in detail, who have spoken of the high speed of the vehicle. It is also established from various scientific evidence, without even regarding the evidence adduced by oral evidence of the witnesses, that the vehicle was driven at an excessive speed.
68. Before this Court refers to the decision of the Apex Court in the very issue of Alister Anthony Pareira (supra), it is to be noted that in the first chargesheet laid against the convict appellant, section 304 (II) was missing. In additional chargesheet laid, the same had been incorporated. There was much debate also when this provision was added and the charge also has been framed. To that extent, the learned counsel for the appellant has rightly urged that the culpable homicide is a genus and murder is spieces, except all murder is culpable homicide, but not visa versa. Culpable homicide is the first kind of unlawful homicide. It is causing of the death by doing (1) an act with intention of causing death (2) an act with intention of causing such bodily injury as is likely to cause death or (3) an act with a knowledge that it was likely to cause death of a person to whom the harm is caused or it is done with an intention of causing body injury or if the same is done with an intention of causing such bodily injury as an offender knows to be likely to cause death of a person to whom the harm is caused or it is done with an intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in ordinary course of nature to cause death, if the person committing the act knows 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 commit such act without any excuse for incurring risk of causing death or such injury as stated above. This very issue had been raised before the Apex Court and has been also elaborately argued before this Court.
68.1. The Apex Court held thus:-
"26. Section 304 Indian Penal Code provides for punishment for culpable homicide not amounting to murder. It reads as under:
"S.304. - Punishment for culpable homicide not amounting to murder - Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death".
27. 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 constituent elements of Part I and Part II are different and, consequently, the difference in punishment.
28. 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 Indian Penal Code have to be seen.
29. Section 299 Indian Penal Code 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 knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
To constitute the offence of culpable homicide as defined in Section 299 the death must be caused by doing an act: (a) with the intention of causing death, or (b) with the intention of causing such bodily injury as is likely to cause death, or (c) with the knowledge that the doer is likely by such act to cause death.
30 Section 300 deals with murder and also provides for exceptions. The culpable homicide is murder if the act by which the death is caused 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 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.
31. It is not necessary in the present matter to analyse Section 299 and Section 300 in detail. Suffice it to say that the last clause of Section 299 and clause 'fourthly' of Section 300 are based on the knowledge of the likely or probable consequences of the act and do not connote any intention at all.
32. Reference to few other provisions of IPC in this regard is also necessary. Section 279 makes rash driving or riding on a public way so as to endanger human life or to be likely to cause hurt or injury to any other person an offence and provides for punishment which may extend to six months, or with fine which may extend to Rs. 1000/-, or with both.
33. Causing death by negligence is an offence under Section 304A. It reads :
"S.304A. - Causing death by negligence.-- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
34. Section 336 Indian Penal Code 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 which may extend to three months, or with fine which may extend to Rs. 250/-, or with both.
35. Section 337 Indian Penal Code reads as follows :
"S. 337. - Causing hurt by act endangering life or personal safety of others.--Whoever causes hurt to any person by doing 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 which may extend to six months, or with fine which may extend to five hundred rupees, or with both."
36. Section 338 Indian Penal Code is as under :
23"S. 338. - Causing grievous hurt by act endangering life or personal safety of others.
--Whoever causes grievous hurt to any person by doing 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 which may extend to two years, or with fine which may extend to one thousand rupees, or with both."
37. In Empress of India v. Idu Beg13, Straight J., explained the meaning of criminal rashness and criminal negligence in the following words: criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence 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 13 1881 (3) All 776 the imperative duty of the accused person to have adopted.
The above meaning of criminal rashness and criminal negligence given by Straight J. has been adopted consistently by this Court.
38. Insofar as Section 304A Indian Penal Code is concerned, it deals with death caused by doing any rash or negligent act where such death is caused neither intentionally nor with the knowledge that the act of the offender is likely to cause death. The applicability of Section 304A Indian Penal Code is limited to rash or negligent acts which cause death but fall short of culpable homicide amounting to murder or culpable homicide not amounting to murder. An essential element to attract Section 304A Indian Penal Code is death caused due to rash or negligent act. The three things which are required to be proved for an offence under Section 304A are : (1) death of human being; (2) the accused caused the death and (3) the death was caused by the doing of a rash or negligent act, though it did not amount to culpable homicide of either description.
39. Like Section 304A, Sections 279, 336, 337 and 338 Indian Penal Code are attracted for only the negligent or rash act.
40. 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 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 Indian Penal Code 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 the act is 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 commission indicating his state of mind.
There may be knowledge of likely consequences without any intention. Criminal culpability is determined by referring to what a person with reasonable prudence would have known.
41. 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. 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 Indian Penal Code. Section 304A Indian Penal Code 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.
42. 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 Indian Penal Code. There is no incongruity, if simultaneous with the offence under Section 304 Part II, a person who has done an act so rashly or negligently endangering human life or the personal safety of the others and causes grievous hurt to any person is tried for the offence under Section 338 Indian Penal Code.
43. 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 Indian Penal Code and also under Sections 337 and 338 Indian Penal Code. The two charges under Section 304 Part II Indian Penal Code and Section 338 Indian Penal Code 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.
44. By charging the appellant for the offence under Section 304 Part II Indian Penal Code and Section 338 Indian Penal Code - which is legally permissible - no prejudice has been caused to him. The appellant was made fully aware of the 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 Indian Penal Code and Section 338 Indian Penal Code for a rash or negligent act resulting in injuries to eight persons and at the same time committed with the knowledge resulting in death of seven persons, the appellant has been asked to face legally impermissible course.
45. In Prabhakaran Vs. State of Kerala14, this Court was concerned with the appeal filed by a convict who was found guilty of the offence punishable under Section 304 Part II Indian Penal Code. In that case, the bus driven by the convict ran over a boy aged 10 years. The prosecution case was that bus was being driven by the appellant therein at the enormous speed and although the passengers had cautioned the driver to stop as they had seen children crossing the road in a queue, the driver ran over the student on his head. It was alleged that the driver had real intention to cause death of persons to whom harm may be caused on the bus hitting them. He was charged with offence punishable under Section 302 Indian Penal Code. The Trial Court found that no 14 2007 (14) SCC 269 intention had been proved in the case but at the same time the accused acted with the knowledge that it was likely to cause death, and, therefore, convicted the accused of culpable homicide not amounting to murder punishable under Section 304 Part II Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years and pay a fine of Rs.15,000/- with a default sentence of imprisonment for three years. The High Court dismissed the appeal and the matter reached this Court.
46. While observing that Section 304A speaks of causing death by negligence and applies to rash and negligent acts and does not apply to cases where there is an intention to cause death or knowledge that the act will in all probability cause death and that Section 304A only applies to cases in which without any such intention or knowledge death is caused by a rash and negligent act, on the factual scenario of the case, it was held that the appropriate conviction would be under Section 304A Indian Penal Code and not Section 304 Part II Indian Penal Code. Prabhakaran does not say in absolute terms that in no case of an automobile accident that results in death of a person due to rash and negligent act of the driver, the conviction can be maintained for the offence under Section 304 Part II Indian Penal Code even if such act (rash or negligent) was done with the knowledge that by such act of his, death was likely to be caused. Prabhakaran turned on its own facts.
47. Each case obviously has to be decided on its own facts. In a case where negligence or rashness is the cause of death and nothing more, Section 304A may be attracted but where the rash or negligent act is preceded with the knowledge that such act is likely to cause death, Section 304 Part II Indian Penal Code may be attracted and if such a rash and negligent act is preceded by real intention on the part of the wrong doer to cause death, offence may be punishable under Section 302 Indian Penal Code.
Re: question (ii)
48. On behalf of the appellant it was strenuously urged that the conviction of the appellant by the High Court for the offence under Section 304 Part II Indian Penal Code rests solely on the premise that the appellant had knowledge that his reckless or negligent driving in a drunken condition could result in serious consequences of causing fatal accident . It was submitted that neither in the charge framed against the appellant, the crux of the prosecution case that the appellant was in a drunken condition was stated nor incriminating evidences and circumstances relating to rashness or negligence of the accused in the drunken condition were put to him in the statement under Section 313 of the Code.
49. 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 Indian Penal Code, 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 committed 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.
50. 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. (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.
51. The above provision has come up for consideration before this Court on numerous occasions.
It is not necessary to refer to all these decisions.
Reference to a later decision of this Court in the case of Anna Reddy Sambasiva Reddy delivered by one of us (R.M. Lodha, J.) shall suffice. In paras 55-56 of the Report in Anna Reddy Sambasiva Reddy it has been stated as follows:
"55. In unmistakable terms, Section 464 specifies that a finding or sentence of a court shall not be set aside merely on the ground that a charge was not framed or that charge was defective unless it has occasioned in prejudice. Because of a mere defect in language or in the narration or in form of the charge, the conviction would not be rendered bad if ac
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cused has not been adversely affected thereby. If the ingredients of the section are obvious or implicit, conviction in regard thereto can be sustained irrespective of the fact that the said section has not been mentioned. 56 A fair trial to the accused is a sine quo non in our criminal justice system but at the same time procedural law contained in the Code of Criminal Procedure is designed to further the ends of justice and not to frustrate them by introduction of hyper- technicalities. Every case must depend on its own merits and no straightjacket formula can be applied; the essential and important aspect to be kept in mind is: has omission to frame a specific charge resulted in prejudice to the accused." 52. In light of the above legal position, if the charge under Section 304 Part II Indian Penal Code framed against the appellant is seen, it would be clear that the ingredients of Section 304 Part II Indian Penal Code are implicit in that charge. The omission of the words 'in drunken condition' in the charge is not very material and, in any case, such omission has 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. " 69. The Court is also conscious of the fact that the appellant's blood sample was drawn after he presented himself on 27.02.2013. He was taken to P.W.No.18 Dr.Shailesh Patel. Analysis of the sample resulted into the report at Exh.No.217 and there was no presence of alcohol. It is also to be remembered by the Court that he had presented himself before the police after about 60 to 65 hours and, therefore, the presence of alcohol would not be there in his blood if through routine test, it is examined. His past conduct and conviction may need to be regarded. However, that will not be determinative of his drunken state, so far as the date of accident i.e. 24.02.2013 is concerned, noticing the emphatic denial of the presence of the appellant in driving the vehicle, the Court notices that there are witnesses, who have spoken of the driving of the BMW car in excessive speed and speed test by the Hitesh Jayantilal Trivedi, FSL Officer (P.W.No.20) by driving the demo Gypsy car so also by Parsoli Motors, which also corroborates the rash and negligent driving on the part of the appellant. It is also established fully that he would surely have knowledge that such act of his would result into serious consequences. These all cumulatively lead this Court not to, in any manner, intervene in the order of conviction. 69.1. Yet another aspect that requires reference is of section 106 of the Indian Evidence Act, which speaks of a special knowledge of a person concerned from the police of Insurance Company lying in the car dash board reflected the name of the appellant as a car owner. He does not dispute even the ownership of the vehicle. However, when he disowns his liability as a driver, onus is upon him to establish that who had taken away the vehicle. He admitted to explain that keys are lying in the common in his house, which is occupied by other persons also and therefore, he would not be aware. That hardly is an explanation, which can be accepted by the Court. There is an ample evidence even in absence of its identification parade, which can pin-point the involvement of this appellant as a driver of the vehicle. Even if this Court overlooks the clear admission given to the Apex Court of not disputing the identity. 70. From the overall consideration of entire evidence, oral and documentary in the opinion of this court, the trial Court committed no error or illegality in convicting the person under section 304(II). Nor has it committed any error in convicting the appellant under section 279 and 427 of the Indian Penal Code and under section 177 and 184 read with section 134(1)(b) of the Motor Vehicles Act. It is a well considered and meticulously delivered judgmetn where on its awarding of punishment, much is argued before this Court. I. Conclusion:- 71. To conclude, the Court needs to examine the mitigating as well as aggravating circumstances to determine as to whether the conviction and the punishment awarded by the trial Court commensurates with gravity of offence. 72. Aggravating circumstances, if are recorded firstly are as follows:- a) Two young boys (motorcyclists) have lost their lives in their prime youth due to rash and negligent driving of the appellant, who was driving his vehicle on a public road in the city having maximum speed limit not exceeding 60 kmph at an excessive speed with the knowledge that such driving is likely to cause death. b) The appellant has chosen to flee away from the place of incident rather than rendering any assistance to the seriously injured victims and even assuming that he was scared of the reaction of the public gathering gradually, nothing prevented him from going to the police station or intimating the police right at the time when the incident occurred or call 108 emergency services also meant for such road accident victims. c) His late surrender by two days has also resulted into the loss of evidence in relation to the drunken driving and other vital evidence which includes serious dispute of identity, since he, in the past, has been convicted under section 185 of the M.V. Act and despite the direction of the Apex Court at the time of his release on bail during the trial. d) He has, all along, seriously disputed his identity, although the ownership of the vehicle is, at no point of time, in dispute. e) During the course of criminal trial, eye witnesses are won over, one of whom went to an extent of denying his very presence at the news room of Gujarati Electronic media and he is also facing the proceedings of perjury. f) In the past, he has been convicted for the offence of drunken driving and thus, has antecedent and is also facing another case under the Gujarat Prohibition Act, which is lodged during the pendency of appeals. g) Number of deaths in the road accidents in India are the second highest, any lenient view is likely to affect the larger public interest. 73. Mitigating circumstances, as proposed, are also culling out from the material on record as under:- a) The appellant was only 24 years old on the date of accident and has later married and has a family. b) The convict has undergone sentence of 1 years awarded by the trial Court and during that period, his conduct and behaviour in jail was not found objectionable. c) The incident occurred at T-Junction, where the deceased Rahul Patel, driving the Pulsar Motor bike, has not taken the vehicle on the right hand side, on the circle from round about and both the motorcyclists were not wearing helmets. d) The appellant has already paid in total, an amount of Rs.500,000/- (Rupees Five Lakhs only) to the family of each victim as awarded by the trial Court and during the pendency of these appeals, they have been also paid amount of Rs.1.50 crores (Rupees One Crore and Fifty lakhs only) and Rs.1.50 crores (Rupees One Crore and fifty lakhs only) to the family of victim Rahul Patel and Shivam Dave respectively. e) The family member of one of the victims had preferred Criminal Revision Application No.374 of 2015, which also, on account of the compromise between the parties, has been not pressed and withdrawal request was also made on their behalf with a plea to treat the period undergone as sufficient. f) The convict was holding a valid driving licence. g) In a subsequent offence, he also carried out the work with charitable organisations and holds certificates of those institutions. 74. Considering, thus, all these aspects and overall facts and circumstances and the law on the subject, this Court concludes that the case since surely would fall under section 304(II) as discussed hereinabove, punishment, should commensurate with the gravity of offence committed. The requirement of the law is of adequate, appropriate and proportionate punishment which is meant not only to punish the person, but also to deter those, who may commit similar kind of offences. a) Findings and observation of the Apex Court on role of proportionality in awarding sentence shall need reproduction at this stage profitably. His Lordship Justice Krishna Iyer in his inimitable manner of expression in the Chandrappa and others vs. State of Karnataka (supra), has held thus:- "Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned author (Glanville Williams : 'Proof of Guilt') has saliently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that 'a miscarriage of justice may arise from the acquittal of the guilty no less than from, the conviction of innocent..' In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents" b) The Apex Court in the case ofState of Himachal Pradesh vs. Nirmala Devi, (2017) AIR SC 1981, also on this very issue has held and observed thus:- "Likewise, stressing upon the principle of proportionality in sentencing in the case of Hazara Singh v. Raj Kumar & Ors., this Court stressed that special reasons must be assigned for taking lenient view and undue sympathy for accused is not justified. It was equally important to keep in mind rights of victim as well as society at large and the corrective theory on the one hand and deterrence principle on the other hand should be adopted on the basis of factual matrix. Following paragraphs from the said judgment under the caption 'sentencing policy' need to be referred to: "11. The cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence. This Court has repeatedly stressed the central role of proportionality in sentencing of offenders in numerous cases. "12. The factual matrix of this case is similar to the facts and circumstances inShailesh Jasvantbhai v. State of Gujarat, (2006) 2 SCC 359 : (2006) 1 SCC (Cri) 499]wherein the accused was convicted under Sections 307/114 IPC and for the same the trial court sentenced the accused for 10 years. However, the High Court, in its appellate jurisdiction, reduced the sentence to the period already undergone. In that case, this Court held that the sentence imposed is not proportionate to the offence committed, hence not sustainable in the eye of the law. This Court observed thus: (SCC pp. 361-62, paras 7-8) "7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a crosscultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of 'order' should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: 'State of criminal law continues to be-as it should be-a decisive reflection of social consciousness of society.' Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. 8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc." 13. This position was reiterated by a three-Judge Bench of this Court inAhmed Hussein Vali Mohammed Saiyed v. State of Gujarat, (2009) 7 SCC 254 : (2009) 3 SCC (Cri) 368, wherein it was observed as follows: (SCC p. 281, paras 99-100) "99. ... The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to (sic break the) law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. 100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime but the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong." In that case, the Court further goes to state that meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counterproductive in the long run and against the interest of the society. 14. InJameel v. State of U.P., (2010) 12 SCC 532 : (2011) 1 SCC (Cri) 582, this Court reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus: (SCC p. 535, paras 15-16) "15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. 16. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence." 15. InGuru Basavaraj v. State of Karnataka, (2012) 8 SCC 734 : (2012) 4 SCC (Civ) 594 : (2013) 1 SCC (Cri) 972, while discussing the concept of appropriate sentence, this Court expressed that: (SCC pp. 744-45, para 33) "33. ... It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice which includes adequate punishment cannot be lightly ignored." 16. Recently, this Court inGopal Singh v. State of Uttarakhand, (2013) 7 SCC 545 : (2013) 3 SCC (Cri) 608 : JT (2013) 3 SC 444held as under: (SCC p. 551, para 18) "18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence." 17. We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment." Following principles can be deduced from the reading of the aforesaid judgment: Imprisonment is one of the methods used to handle the convicts in such a way to protect and prevent them to commit further crimes for a specific period of time and also to prevent others from committing crime on them out of vengeance. The concept of punishing the criminals by imprisonment has recently been changed to treatment and rehabilitation with a view to modify the criminal tendency among them. There are many philosophies behind such sentencing justifying these penal consequences. The philosophical/jurisprudential justification can be retribution, incapacitation, specific deterrence, general deterrence, rehabilitation, or restoration. Any of the above or a combination thereof can be the goal of sentencing. Notwithstanding the above theories of punishment, when it comes to sentencing a person for committing a heinous crime, the deterrence theory as a rationale for punishing the offender becomes more relevant. In such cases, the role of mercy, forgiveness and compassion becomes secondary. In such cases where the deterrence theory has to prevail, while determining the quantum of sentence, discretion lies with the Court. While exercising such a discretion, the Court has to govern itself by reason and fair play, and discretion is not to be exercised according to whim and caprice. It is the duty of the Court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience. While considering as to what would be the appropriate quantum of imprisonment, the Court is empowered to take into consideration mitigating circumstances, as well as aggravating circumstances. " 75. Apt would be to refer to the report of the World Health Organisation in the Global Status Report on Road safety, as referred to by the Apex Court in the case of Alister Anthony Pareira (supra) that speeding and drunken driving are the major contributing factors in road accidents. 76. As per WHO global report of Road Safety, 2018, India accounts for almost 11% of accident related deaths in the world. 77. According to the NCRB, 2016 the total number of deaths due to road accident in India were over 4,96,762 in the year 2015. India reported traffic collision report of about 0.8 per 1000 vehicles in 2015 and 11.35 fatality rate per 100,000 people. India ranks the first in number of road death across 199 countries reported in the World Road Statistics, 2018 followed by China and U.S. 78. Approximately half of all deaths on the country's roads are of motorcyclists, pedestrians and cyclists. Indian average traffic collision fatality rate was similar to the world average rate of 17.4 deaths per 100,000 people. Less than the low income countries, which have average of 24.1 death per 100,000 people and higher than higher income countries, which reported lowest average rate of 9.2 deaths per 100,000 people in 2013. 79. The Apex Court also has recommended to the law makers to re-visit section 304A of the Indian Penal Code, when the Indian road conditions, so far as the question of accidents are concerned, is extremely worrisome. Bill was introduced to provide a safer and effective movement of passenger and freight being "The Road Transport and Safety Bill, 2014, which is not the law till date, however, certain amendments are proposed in the Motor Vehicles Act, 1988 by making the provisions stringent in the year 2019. This gives power to State Government to regulate the activities of pedestrians and non-motorised road users in public places. It has proposed penalties for guardian/owner of vehicle for offences committed by juveniles. It defines "dangerous driving", which includes passing or overtaking any motor vehicle in a manner contrary to law. The proposed amendment to section 161 of the Act is to increase the compensation in case of grievous injury and death. Revised minimum penalty reflects substantial enhancement in levying of fine. It also contemplates establishing a National Road Safety Board to advice to the Union and the State Government on all aspects of road safety and traffic management. 80. The state of Indian roads thus simply cannot be left sight of by this Court, where not only the big four-wheelers like truck, buses and cars, travel on the same road, the motorcyclist, the cyclist and the pedestrians, all have no other options, but, to commute on the same road. We, as the citizens, unfortunately, have very scant respect or regard for the human life, which is, since, found in abundance in this country and have least respect for smaller vehicles or persons going on bicycles or for pedestrians walking on the road. The traffic rules by and large to an average citizen on the T-Junctions, cross-roads and otherwise are alien and its observance and implementation is more often in breach. J. Operative Order: 81. Resultantly, the request on the part of the appellant to quash and set aside the conviction under section 304 Part-II or to construe the sentence undergone as a sufficient period of punishment is not finding favour with the Court. Therefore, the appeal of the convict is being dismissed with no interference in the conviction and sentence imposed by the trial Court and accordingly, Criminal Appeal No.864 of 2015 is dismissed. 82. At the same time, when the families of the victims have no grievance against the appellant and has, in fact, prayed for the Court to take a lenient view and also has urged for sentence of imprisonment to be reduced with sufficient amount of compensation having been paid, noticing overall facts and circumstances discussed hereinabove, the Court also does not deem it to be a fit case for enhancement of sentence as appealed by the State. 83. The law pertaining to enhancement of sentence is also made clear in case ofDalip Singh versus State of Punjab, 1953 AIR SC 367andBed Raj versus State of you UP, (1955) AIR SC 778, where the Apex court held that the question of sentence is primarily a matter of discretion of the trial court and unless exercised capriciously in the sentence awarded by the court is grossly and manifestly inadequate, the Appellate Court is not required to interfere. If already acted along accepted judicial lines, no interference is desirable. There has to be strong reasons for the Appellate Court to enhance the same and not because it could have recorded higher penalty if left to itself. 84. Resultantly, while dismissing the Criminal Appeal No.1016 of 2015 of the State on the aspect of enhancement of sentence, the Court deems it appropriate to direct the payment of amount to the State by the appellant for utilizing the same in providing compensation to the victims of motor accidents where the vehicle owners, drivers etc, could not be traced for the benefits of victims of hit and run cases. The appellant is directed to pay the token amount of Rs. 2,00,000 (Rupees Two Lakhs only). In default, the same shall be recovered from him as the land revenue, following the legal procedure. This amount shall be utilized for the purpose for which it has been specified above. 85. Both the victims since have received substantial amount as mentioned hereinabove, this Court does not need to grant any further compensation, individually to the families of the victims. They have also not made any request and have expressed their satisfaction over the sum provided to them. Although, specific details of immovable property or the exact amount of cash have not been revealed, it is categorically declared and also stated on oath that the amount of Rs.1.50 crores to the family of each victim is an aggregate value of both, the immovable property and cash amount received from the Appellant and his family. Once having declared this, as noted by a separate detailed order, this Court has verified by due scrutiny that this has been arrived at without any coercion, duress or persuasion against their will and wishes. Having lost the only son by both the families who were on the verge of initiating their career, their having agreed to monetary and other benefits by way of compensation cannot be surely frowned upon. This could have been granted under the law by way of compensation, which parties chose to finalise voluntarily. Being satisfied with the voluntariness and sufficiency of sum, no further order is warranted. 86. The State is also recommended that the Department of Social Justice and Empowerment can work in tandem with the jail authority, which is essentially a correctional home and those convicts, who are undergoing sentence in such cases shall need to undergo the service to the community specially in all those matters, where unfortunately because of the conduct of the convict, there has been a loss of human life. 87. As the trial Court had already initiated the proceedings of perjury under section 344 of the Code of Criminal Procedure against the complainant Mr. Lalit Rajeshbhai Gupta and in wake of the preferring of an appeal by the convict, and the State, statutorily if that proceedings by now has not been concluded, the trial Court shall complete the same without any delay as far as possible to such proceedings a logical conclusion within 12 weeks from the date of receipt of the copy of this judgement. 88. With these directions, Criminal Appeal No.864 of 2015 is dismissed, whereas Criminal Appeal no.1016 of 2015 is allowed to the extent stated above. The sentence, since, has been suspended by the Apex Court and convict is set free, during the pendency of the appeals, he shall surrender himself immediately to undergo the remaining period of sentence. 89. At this stage, learned Advocate, Mr. Maunish Pathak, appearing for the appellant-original convict has prayed for extending time of surrender for the period of six weeks to enable the appellant to approach the Apex Court. 90. According to the learned APP, Mr. Soni, the same should not be beyond the period of four weeks. 91. Having considered the fact that the appellant is already granted bail by suspending the sentence by virtue of order of the Apex Court, he is hereby granted six weeks' time to surrender to undergo remaining period of sentences. He, if chooses not to challenge this judgment and order and also does not surrender, at the end of the stipulated period, non-bailable warrant shall be issued against him by the trial Court to arrest the appellant.