Harjit Singh Bedi, J.
1. The matter before us is of a great public importance and clearly reflects the anxiety and concern that we feel towards the travelling public. The
number of vehicles on the road, the speed to which they can now be driven, the lack of elementary skills, knowledge and etiquette of decent
driving have led to an enormous increase in the number of accidents and a journey by road with mangled vehicles and bodies strewn around is a
common experience. The statistics picked up by us from The Tribune dated 19, 20 and 21.8.2001 are truly disturbing. It has been reported that
there has been a 500 per cent increase in deaths in accidents in Punjab between 1980 to 2000 and that against 472 deaths in 1980, 2800 persons
had lost their lives, in 1999 2000. It has also been reported that the number of murders in Punjab in 1980 was 620 and while the murders had
mercifully remained around 800 as of today, the number of deaths in road accidents had gone up alarmingly. It was further reported that the worst
offenders were trucks, followed by cars, buses and twowheelers. Little wonder, therefore, that a safe return from a journey is often an occasion for
thanks giving. It is in this background that the fate of the road traveller has become a matter of focus and concern and the traditional interpretation
of the law governing motor accidents must be re interpreted to meet the changed scenario and the crying need of the hour till the legislature acts
decisively and makes fundamental changes in the law governing the concept of rashness and negligence as visualised under Section 304A of the
Indian Penal Code. While we were yet pondering over this matter, we came across a News item in `The Tribune'' dated 9.8.2000 captioned
Tipsy Crew put passengers in driving seat"", in which it was reported that five Conductors and Drivers of the Haryana Roadways had taken a bus
out of the depot for a joyride and after collecting free liquor and food from a Dhaba which they often patronised while on duty and while driving
and partying in the bus had a collision with a car killing five members of a family. It was also reported that from enquiries made, it had been
revealed that Haryana Roadways buses had been involved in about 300 accidents in three months and most of then had, on investigation, been
attributed to drunken driving. Alarmed by this and much other information available almost daily from the newspapers, we issued notice to the
Advocates General for the States of Punjab and Haryana and also the standing counsel for the U.T. Administration to assist us on the question as
to whether in such or similar cases a charge under Section 304A of the Indian Penal Code was in order or the nature of the act required a more
stringent applicability of the law. We also requested several counsel to assist us and are indeed grateful to Mr. R.S. Cheema, Senior Advocate,
who has helped us in arriving at our conclusions.
2. We have considered the matter very carefully and are of the opinion that in cases of extreme recklessness or negligence, a driver cannot be said
to be guilty of merely committing a rash or negligent act to be booked under Section 304A of the Indian Penal Code as in certain cases the act
may amount to culpable homicide not amounting to murder and in the most extraordinary of cases, may even amount to murder. We record, in
short, the reasons for our opinion.
3. Section 304A of the Indian Penal Code reads as under :
Causing death by negligence :
Whoever causes the death of any person by doing any rash and negligent act not amounting to culpable homicise, shall be punished with
imprisonment of either discription for a term which may extend to two years, or with fine, or with both"".
4. In Empress of India v. Idu Beg, I.L.R. 3, Allahabad, 776, It was observed that 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 of indifference as to consequences."".
5. In Bharosi v. State, AIR 1957, MP, 236, the words `rashness'' and `negligence'' have been elucidated thus :
6. ""Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that they will not. And
negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are the determining factors. According to
Russle on Crime (1950 Ed) p. 641, there must be mens rea in the criminal negligence also. The learned author has said that Judges have used
many epithets to describe negligence, such as `culpable'', `criminal'', `gross'', `wicked, or `complete negligence''. But whatever epithet be used .....
in order to establish criminal liability, the facts must be such that the negligence of the accused went beyond a mere matter of compensation and
showed such disregard for the life and safety of others as to amount to a crime"".
7. To answer the question posed by us, Section 304A would have to be read alongwith Section 299 which defines culpable homicide and Section
300 which enmerates the circumstances in which culpable homicide may amount to murder. Section 299 and clause fourthly of Section 300 which
are relevant for our purpose are reproduced below :
299. Culpable homicide.
Whoever causes the 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"".
300. Murder : Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the
intention of causing death, or
2ndly xx xx xx xx
3rdly xx xx xx xx
4thly of Section 300 ""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 commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
8. It will be evident from a reading of the second part of Section 299 and clause 4thly of Section 300 that they do not talk about `intention'' but
make reference to the fact that a person committing such an act must have the knowledge that he could cause death or bodily injury. The two
sections, however, differ in one material aspect inasmuch that while Section 299 visualises that death was likely to be caused by a particular act,
Section 300 presupposes (interalia) that the act committed was so imminently dangerous that it must in all probability cause death or is likely to
cause death. It is, therefore, the nature of the act, which would bring the matter within either Section 299 or Section 300. This distinction has been
clearly brought about in Queen v. Gora Chand Gopee and others, reported as 1866 Weekly Reporter, Criminal, 45 and by the Hon''ble Supreme
Court in State of Madhya Pradesh v. Ram Prasad, A.I.R. 1968 Supreme Court 881. In this case, Ram Prasad had quarrelled with his mistress
Mst. Rajji and in the heat of moment had pured kerosene oil on her and set her alight. The trial Court acquitted him of the charge of murder and
convicted him for an offence under Section 324 of the Indian Penal Code. The High Court in appeal setaside the judgment of the trial Court and
convicted him under Section 304II. The matter was taken to the Supreme Court by the State and while discussing clause fourthly of Section 300
of the Indian Penal Code, it was observed that Ram Prasad''s act was covered by that clause and convicted him under Section 302 of the Indian
Penal Code by holding :
Although clause fourthly is usually invoked in those cases where there is no intention to cause the death of any particular person (as the illustration
shows) the clause may on its terms by used in those cases where there is such callousness towards the result and the risk taken is such that it may
be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death.
9. The above observations clearly underline the view that it would be the nature of act that would determine the gravity and nature of the offence.
10. Equally relevant are the observations of Division Bench of the Lahore High Court in Gurdev Singh Sardar Puran Singh v. Emperor, AIR 1941
Lahore 459. In this case the accused was driving a lorry down the Grand Trunk Road from Delhi northwards in the direction of Panipat. He was
signalled to stop by a Police Officer but instead of doing so, attempted to get away and drove along the G.T. Road at a speed of 50 or 55 miles an
hour. As the lorry came near a culvert, a young girl, who was crossing the road was run over and killed. Although the Division Bench held that the
facts made out a case of rash and negligent driving punishable under Section 304A of the Indian Penal Code yet the observations are extremely
relevant in the context of this discussion :
The appellant was driving fast on a public highway and while there is no doubt he was driving a heavy vehicle at great speed it cannot be said that
he knew that by driving at that pace on an open road in the country he was likely to cause death. The child who has killed came from the side of
the road and attempted to cross in front of the lorry. It is true that if the lorry had not been driven at this great speed the driver could have avoided
the accident and he certainly caused the death of the child by his rash and negligent driving. To say, however, that he must have known that such an
accident was bound to occur, and therefore, he was likely to cause death, is putting an interpretation upon the facts which they cannot bear. It is
possible that the driving of a heavy vehicle at high speed in a crowded place like a city might result in charge under Section 304, or even under
Section 301, Penal Code, but it would be impossible under the circumstances of this case to bring the offence under either of these sections. We
think that the offence clearly comes within Section 304A, Penal Code, as the appellant under all the circumstances of the case has certainly
committed a rash and negligent act not amounting to culpable homicide. We, therefore, set aside the conviction under Section 302, Penal Code,
and the sentence of death, and convict Gurdev Singh appellant under Section 304A, Penal Code, and sentence him to rigorous imprisonment of 18
months"".
11. These observations clearly supplement the observations in Bharosi''s case (supra) and can profitably be applied to the scenario as it exists
today 60 years after the judgment was delivered. The enormous increase in the population and all around development has virtually obliterated the
difference between town and country. The proliferation of motor vehicles of various categories and the speeds which some of them can achieve
make these broad principles clearly applicable. The statistics culled out from various articles in the `Tribune'' and the `Indian Express'' are truly
mindboggling. We reproduce here some of the relevant information :
Vehicles Registered in Punjab
Year Buses Cars Jeeps Taxis 3wheelers 2wheelers
1980 5,850 25,888 5,495 1,867 2,897 1,76,555
1990 9,470 66,312 12,453 4,034 13,550 8,77,837
1997 13,823 1,19,958 20,028 5,166 22,337 16,30,068
2000 15,708 1,70,925 23,111 6,065 26,664 19,54,764
Accidents : Involvement of various types of vehicles
Year Buses Cars Jeeps Taxis 3wheelers 2wheelers
1980 286 68 31 259 16 55
1990 293 177 77 398 33 93
1997 522 631 x* 936 x* 214
1998 526 740 x* 1091 x* 270
x* figures included in other categories
Deaths in road accidents
Year Accidents Vehicles involved Killed Injured
1980 1,010 1,064 472 836
1990 1,621 1,621 1,133 1,322
1997 3,301 3,301 2,353 2,721
1998 3,579 3,579 2,295 2,705
12. It is also significant that the number of accidents involving cars visa vis other vehicles has increased phenomenally and that the number of dead
and injured in road accidents along the main highways is much higher than the side roads. This is clear from the following tables:
Districts with more than 150 deaths in road accidents in 1997/1998.
Year Accidents Vehicles involved Persons Killed Persons Injured
1997/1998 1997/1998 1997/1998 1997/1998
Ludhiana 543/500 543/500 399/294 280/297
Patiala 483/542 483/542 288/334 376/301
Amritsar 286/285 286/282 218/187 298/308
Ropar 291/374 291/374 169/221 243/410
Hoshiarpur 213/232 213/232 165/152 204/267
Gurdaspur 266/207 266/207 162/115 179/186
Sangrur 210/240 210/240 161/149 233/209
Jalandhar 247/237 247/237 156/163 167/142
Year District/Union Territory Persons killed Persons injured
1998 Chandigarh 128 322
Panchkula 83 242
Gurgaon 321 759
Faridabad 293 1069
Karnal 260 589
Kurukshetra 184 617
Panipat 185 368
1999 Chandigarh 137 409
Panchkula 79 323
Gurgaon 316 851
Faridabad 335 1158
Karnal 213 742
Panipat 193 391
Kurukshetra 209 813
2000 Chandigarh 80 292
Panchkula 50 148
Gurgaon 196 411
Faridabad 161 570
Karnal 123 351
Panipat 85 193
Kurukshetra 93 410
Upto August 17, 2000,
Upto June 30, 2000,
13. The above table underlines the speed which is often achieved by drivers on the open highway. Statistics are impersonal but they do convey the
gory details of the death count along the grand truck road between Ambala and Delhi (N.H. 1.). In the year 199899, 1073 accidents took place
leading to 638 deaths and injuries to 1323 persons. There was a marginal decease in the year 19992000 on the completion of the fourlaning of the
highway with 922 accidents leading to 576 deaths and 1284 injured. It can safely by assumed that a large number of accidents figuring in the tables
were probably caused by the extreme rashness or negligence visualised by us.
14. We are, therefore, of the opinion that in cases covered by the News items and in similar matters not necessarily arising out of motor accidents
which are the result of utter callousness, that come to our notice with disturbing regularity and are a matter of deep concern, a prosecution for an
offence punishable only under Section 304A of the Indian Penal Code may not be in order, and the circumstances may warrant more vigorous
action. We, therefore, issue a direction to Courts subordinate to this Court to ensure that in cases of extreme negligence and rashness and only
where the evidence and circumstances so warrant, a charge under Section 304 or 302 of the Indian Penal Code adequate to the circumstances of
the case be framed alongwith an alternative charge under Section 304A of the Code. The matter is disposed of accordingly.
JUDGMENT accordingly