Rash Driving Cases: When Punishment under Sec 304 II applied?

•       When a person through his rash or negligent act commits death of another than he is made punishable under Sec 304A
•       And when such act results in either endangering human life or causing hurt or causing grievous hurt than he could be made punishable under cluster of sec 336 to sec 338
•       In category of rash and negligent acts, is also covered driving or riding any vehicle on public way in a manner which is rash and negligent to the extent it endangers human life. Such driving or riding is punishable under Sec 279 IPC.

 In any case, IPC provides ample provisions to nail the accused, but much rests on investigative agencies and able prosecution. High and mighty may still go scot free if they press the right buttons.

It was in Alister Anthony Pareira v St of Maharashtra [(2012) 2 SCC 648] that a well-crafted issued was urged before the apex court: whether a person can be made liable under Sec 304 II and Sec 338 IPC together and is not such a framing mutually destructive ?

Before the charge is further expounded let’s have a brief of factual situation:

Appellant herein Mr Alister Pareira is accused of driving in rash and negligent manner and with knowledge that people were asleep on footpath rammed his car over a pavement. His act resulted in death of seven persons and injuries to eight persons. It is an established fact that he was fully familiar with the road on which he was driving and that he as under influence of alcohol.

 Issue:

It has been stressed by the defence that “the appellant was charged for the above offences for committing a single act i.e., rash or negligent for causing injuries to eight persons and at the same time committed with knowledge resulting in death of seven persons which is irreconcilable and moreover that has caused grave prejudice to the appellant resulting in failure of justice.”

For sake of convenience it is to be recalled that for punishment under Sec 304 II  accused must have committed culpable homicide not amounting to murder and the act done by him was done with the knowledge that it is likely to cause death or to cause such bodily injury as is likely to cause death. Thus the act should fall under Sec 299 clause 4. Though the knowledge attribute is also covered mentioned in Sec 300 Fourthly but facts of this case do not attract other requirements of Sec 300 Fourthly

Suffice it say following must be shown to bring any given set of facts under Sec 299 Clause 4:

•  Death must be caused;
• Act done was with knowledge that he (accused) is likely by such act to cause death

On the contrary Sec 338 has no knowledge element. It states:

“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.”

Similarly Sec 279 also omits any specific mention of knowledge element:

“279. Rash driving or riding on a public way.—Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with im­prisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”

So also Sec 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.”

 The above three sections [including Sec 336, 337] do not require proof of either intention or knowledge in committing rash and negligent act and thus at lower footing from Sec 299 which requires either intention or knowledge to be proved with actus of accused. In similar terms following would be requirements for culpability in under any of above three sections:

“ (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.”

The absence of knowledge element in sec 338 and its must presence for conviction under Sec 299 makes it appear to be self-destructive charges, if pleaded for one set of facts. However in Alistar Pareira the SC has held otherwise. The Court states:

“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 IPC 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 IPC.”

“41. A person, responsible for a reckless or rash or negligent act that causes death which he had knowledge as a reasonable man that such act was dangerous enough to lead to some untoward thing and the death was likely to be caused, may be attributed with the knowledge of the consequence and may be fastened with culpability of homicide not amounting to murder and punishable under Section 304 Part II IPC.

42. 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 IPC.”

In  State Tr.P.S.Lodhi Colony,New Delhi vs Sanjeev Nanda [(2012) 8 SCC 450]where the accused had through his high speed vehicle killed six persons. The accident was of nature that 2 persons who had come under the car were dragged upto a certain distance.

Hereto the State charged the accused with Culpable Homicide punishable under Sec 304 II. This was held valid charge considering the facts and circumstances of the case. ‘Knowledge’ was attributed to accused as he was driving in inebriated condition after excessive drinking and without any driving license. The car was at high speed and after hitting the persons he left them unattended, with bodies scattered all around. Such inaction would rightly indicate sufficient knowledge of accused about the crime he had done and was therefore convicted under 304 II and not 304 A. the Court reiterated Alistar Pareira: “ 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.”

The opinion of SC in Alistar Pareira has been basis of conviction in many cases where death was caused by rash and negligent driving by accused. It has been the jurisprudence of court that such cases of reckless actions must be dealt sternly. This is to send out a strong message that life and limb of pavement sleepers or pedestrians is as precious as that of any other person. Cases of drunken driving and ramming on-road people shake the societal conscience and accused in such cases must discharge the onus that they lacked knowledge or intention while doing such acts. By claiming benefit of inebriated condition one cannot absolve himself of such heart-rending crimes.