Madras High Court

Arulanandham vs State Rep. By on 13 June, 2022

                                                                                  Crl.RC.No.671 of 2017

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     Dated : 13.06.2022

                                                         CORAM

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN


                                               Crl.RC.No.671 of 2017


                Arulanandham                                                 ... Petitioner

                                                           vs.

                State rep. By
                Inspector of Police,
                Kodumudi Police Station,
                Erode District,
                Crime No: 117/2014                                           ... Respondent



                Prayer: This Criminal Revision Case has been filed, under Sections 397 r/w
                401 of Cr.P.C, to set aside the order made in C.A.No.203 of 2016 dated
                11.01.2017 on the file of the Principal Sessions Judge, Erode confirming the
                judgment made in C.C.No.56/2014 dated 11.11.2016 on the file of the District
                Munsif cum Judicial Magistrate, Kodumudi.


                                        For petitioner: Mr.S.N.Arunkumar
                                                        for Mr.C.Ramkumar
                                        For Respondent : Mr.S.Sugendran
                                                         Addl.Public Prosecutor

                1/18

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                                                                                    Crl.RC.No.671 of 2017



                                                          ORDER

The Petitioner/acccused has preferred the above revision,

challenging the Judgment passed in C.A.No.203 of 2016 on the file of the

Principal Sessions Judge, Erode, confirming the Judgment passed in

C.C.No.56/2014 dated 11.11.2016 on the file of the District Munsif Cum

Judicial Magistrate, Kodumudi convicting the petitioner for the offences under

Sections 279 and 304-A of IPC. The Trial Court imposed a sentence of one year

simple imprisonment and a fine of Rs.5000/- in default, to undergo sentence of

one month of Simple Imprisonment on the petitioner. The Trial Court did not

impose any separate sentence for the offence under Scetion 279 IPC.

2. The case of the prosecution is that the deceased Kandaswamy was

travelling from east to west on Muthur to Kodumudi road in a two wheeler TN

42 V 7431 on 03.06.2014 at about 9:00 PM. When the deceased was nearing

Ramya Mahal on the said road, a heavy vehicle lorry bearing registration No.

TN 04 AL 3762 came in the opposite direction; that the appellant had overtaken

the said lorry in his Bajaj Pulsar vehicle bearing registration No. TN 33 AX

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0211 and collided with the vehicle of the deceased who came on the correct

side of the road; that due to the collision, the victim fell from his vehicle and to

his right side, and the back wheel of the lorry ran over the victim and he died on

the spot.

3. The prosecution had examined 10 witnesses on their side. Out of

which P.W.1 and P.W.2 are said to be eye witnesses to the occurrence. P.W.1

was the employer of the deceased who was riding another two wheeler

following the vehicle of the deceased. P.W.2 was accompanying P.W1 in the

said two wheeler. P.W.3 and P.W.4 are the father and mother of the deceased.

P.W.5 is the witness to the Observation Mahazer. P.W.6 was the driver of the

lorry. P.W.7 is the Motor Vehicle Inspector. P.W.8 is a Doctor who conducted

the autopsy on the deceased, P.W.9 and P.W.10 are the Investigating Officers.

Based on the evidence, the trial Court concluded that the petitioner had caused

the death of the deceased by riding the vehicle in rash and negligent manner.

The Appellate Court also confirmed the findings of the trial Court.

4.Heard Mr.S.N.Arunkumar, the learned counsel for the

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petitioner/accused and Mr.S.Sugendran, learned Additional Public Prosecutor

and perused the materials available on record.

5. This Court, from the the evidence let in by the prosecution, finds

that the manner in which the occurrence has taken place has not been

conclusively established by the prosecution. P.W.1, who was the employer of

the deceased, is said to have followed the vehicle of the deceased at the time of

occurrence. P.W.2 was riding pillion in the vehicle of P.W.1. Both the

witnesses admit in their cross-examination that they heard a sound and

thereafter saw the deceased lying on the road. It is therefore highly unsafe to

rely upon their evidence. P.W.6, the lorry driver, who was originally shown as

accused, in his cross-examination would say that they were two persons in the

two wheeler that the deceased came in. This is totally contrary to the

prosecution case. It is therefore unsafe to believe his version also. The

prosecution has neither established rashness nor negligence on the part of the

accused. Both the Courts below have convicted the accused on the strength of

the deposition of the above witnesses. No other independent witnesses were

examined. Both the Courts below have proceeded on the basis that the accused

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did not have valid license for riding two-wheeler. However, that is not the case

of the prosecution. None of the witnesses including the Investigating Officer

have spoken about the said fact. The Courts below have relied upon the report

of Motor Vehicles Inspector. P.W.7 marked as Ex.P.5 to come to the said

conclusion. The report in my view does not conclusively establish that the

accused did not have a valid driving license. The report only says that the

documents relating to the vehicle were not produced at the time of inspection.

In any event, there is no evidence let in by the prosecution to establish that the

accused did not have a valid driving license. This Court is of the view that the

Courts below have not appreciated the facts and the evidence on record in the

proper perspective.

6. Be that as it may, it is the case of the prosecution that the cause of

the death of the deceased was due to his fall pursuant to the collision and

thereafter being runover by the lorry. Even if the prosecution case is accepted to

be true, it has to be seen whether the act of the accused would constitute the

offence under Section 304-A IPC. In order to appreciate the same, it has to be

seen whether the accused had the requisite mens rea and whether his acts were

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the 'causa causans' for the death of the deceased.

7. The words to denote mens rea in the offence of Section 304-A IPC

are ''rash" or "negligent". The mental states necessary to convict a person under

Section 304-A IPC are lesser in degree as compared to "intention" and

"knowledge" which are the culpable mental states required for other offences

against body. Just as there is a gradation in the maximum sentence prescribed

under the Penal Code proportionate to the act committed by the accused, there

is gradation according to the mens rea even though the resultant act is the

same. For instance, though in murder, culpable homicide and in the offence

under Section 304-A IPC the resultant act is death, the punishments are

different because there is a difference in the degree of culpable mental state

required for each of these offences. Interestingly, in the punishment provided

for culpable homicide not amounting to murder one would find that where the

offence is committed with intention, the maximum sentence is imprisonment

for life and when it is committed only with knowledge but without any

intention the maximum punishment is ten years, though in many other offence

no such distinction is made in the punishment prescribed.

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8.Therefore, the nature and degree of culpable mental states has to be

understood clearly while interpreting the provisions of Penal Code. The

framers of the Penal Code did not intend to punish all wrongful or immoral acts

as could be seen from their note annexed along with the original draft of the

Penal Code prepared in 1837. In note (H) which is a note on the chapter of

offences relating to marriage, the framers stated thus:

"...We cannot admit that a Penal Code is by any means to be considered as a body of ethics, that the legislature ought to punish acts merely because those acts are immoral, or that, because an act is not punished at all, it follows that the legislature considers that act as innocent. Many things which are not punishable are morally worse than many things which are punishable. The man who treats a generous benefactor with gross ingratitude and insolence deserves more severe reprehension than the man who aims a blow in passion, or breaks a window in a frolic; yet we have punishment for assault and mischief, and none for ingratitude. The rich man who refuses a mouthful of rice to save a fellow creature from death may be a far worse man than the starving wretch who snatches and devours the rice; yet we punish the latter for theft, and we do not punish the former for hard-heartedness "

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The Hon’ble Supreme Court in two of their Judgments has extracted

the above portion in R.Sai Bharathi Vs, J,Jayalalitha and others reported in

(2004) 2 SCC 9 at Para No.56 and in Subramanian Swamy Vs. Union of

India reported in (2016)7 SCC 221 (para 90).

9. The mental states that are necessary as stated earlier for an offence

under Section 304-A IPC are either "rash" or "negligent". Both these words

have not been defined in the Penal Code. Negligence is both a tort and a crime.

Hence, it is necessary to make a distinction between negligence as a tort and a

culpable negligence. The Hon'ble Supreme Court in Sushil Ansal v. State,

reported in (2014) 6 SCC 173 while examining Section 304-A IPC was pleased

to observe as follows in Paragraphs 57 and 58:

"57. The terms “rash” or “negligent” appearing in Section 304-A extracted above have not been defined in the Code. Judicial pronouncements have all the same given a meaning which has been long accepted as the true purport of the two expressions appearing in the provisions. One of the earliest of these pronouncements was in Empress of India v.

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Idu Beg [Empress of India v. Idu Beg, ILR (1881) 3 All 776] , where Straight, J. explained that in the case of a rash act, the criminality lies in running the risk of doing an act with recklessness or indifference as to consequences. A similar meaning was given to the term “rash” by the High Court of Madras in Nidamarti Nagabhushanam, In re [Nidamarti Nagabhushanam, In re, (1871-74) 7 Mad HCR 119], where the Court held that culpable rashness meant acting with the consciousness that a mischievous and illegal consequence may follow, but hoping that it will not. (Emphasis Supplied) Culpability in the case of rashness arises out of the person concerned acting despite the consciousness. These meanings given to the expression “rash”, have broadly met the approval of this Court also as is evident from a conspectus of decisions delivered from time to time, to which we shall presently advert. But before we do so, we may refer to the following passage from A Textbook of Jurisprudence by George Whitecross Paton reliance whereupon was placed by Mr Jethmalani in support of his submission. Rashness according to Paton means:

“where the actor foresees possible consequences, but foolishly

thinks they will not occur as a result of his act”.

58. In the case of “negligence” the courts have favoured a meaning which implies a gross and culpable neglect or failure

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to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. (Emphasis supplied) Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection."

10.From the above observations, it is clear that the meaning of the

words rashness and negligence have evolved through Judicial pronouncements

for a long time and has been approved by the Hon'ble Supreme Court in the

above Judgment. The Hon’ble Supreme Court also made it clear that rashness

and negligence are two different mental states. Therefore, it is proper that

while framing Charge under Section 304-A of IPC, the trial Court must

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specifically state as to which of the mental states, the accused is charged with.

Both the mental states would not go together.

11. While discussing about the difference between negligence in civil

actions and in criminal cases, the Hon'ble Supreme Court was pleased to

observe as follows in Paragraph 73:

"73. Conceptually the basis for negligence in civil law is

different from that in criminal law, only in the degree of

negligence required to be proved in a criminal action than

what is required to be proved by the plaintiff in a civil action

for recovery of damages. For an act of negligence to be

culpable in criminal law, the degree of such negligence must

be higher than what is sufficient to prove a case of negligence

in a civil action. Judicial pronouncements have repeatedly

declared that in order to constitute an offence, negligence

must be gross in nature. That proposition was argued by Mr

Ram Jethmalani at great length relying upon the English

decisions apart from those from this Court and the High

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Courts in the country. In fairness to Mr Salve, counsel

appearing for CBI and Mr Tulsi appearing for the Association

of Victims, we must mention that the legal proposition

propounded by Mr Jethmalani was not disputed and in our

opinion rightly so. That negligence can constitute an offence

punishable under Section 304-A IPC only if the same is

proved to be gross, no matter the word “gross” has not been

used by Parliament in that provision is the settled legal

position. It is, therefore, unnecessary for us to trace the

development of law on the subject, except making a brief

reference to a few notable decisions which were referred to at

the Bar."

12. The Hon'ble Supreme Court in Jacob Mathew v. State of

Punjab, (2005) 6 SCC 1 was pleased to hold that the word "gross" has to be

read into the provisions of 304-A. The relevant portions of the judgement of

the Hon'ble Supreme Court are found in Paragraph 48.6 which is extracted

below:

48"(6) The word “gross” has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or

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recklessness, to be so held, must be of such a high degree as to be “gross”. The expression “rash or negligent act” as occurring in Section 304-A IPC has to be read as qualified by the word “grossly”."

13. The Hon'ble Supreme Court in Sushil Ansal case stated supra

clarified that it is impossible to define exactly as what would be "gross"

"Rashness" or "negligence" and that it would depend on facts and

circumstances of each case. The relevant portion in Paragraph 78 of the said

judgment is as follows:

"78. There is no gain saying that negligence in order to provide a cause of action to the affected party to sue for damages is different from negligence which the prosecution would be required to prove in order to establish a charge of “involuntary manslaughter” in England, analogous to what is punishable under Section 304-A IPC in India. In the latter case it is imperative for the prosecution to establish that the negligence with which the accused is charged is “gross” in nature no matter that Section 304-A IPC does not use that expression. What is “gross” would depend upon the fact situation in each case and cannot, therefore, be defined with certitude. Decided cases alone can illustrate what has been considered to be gross negligence in a given situation."

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14. Thus, from the above discussion, it would be clear that

"negligence" or "rashness" per se are not culpable unless it is grave or gross in

nature. That apart, the facts of the instant case would show that the act of the

accused was not the "causa causans" for the death of the deceased. Even

according to the prosecution, the deceased fell off the bike and thereafter

runover by the lorry. The act of the accused, therefore, was not the immediate

cause for the death of the deceased. The Hon'ble Supreme Court in Sushil Ansal

stated supra was pleased to observe as follows:

"82. To sum up : for an offence under Section 304-A to be proved it is not only necessary to establish that the accused was either rash or grossly negligent but also that such rashness or gross negligence was the causa causans that resulted in the death of the victim.

83. As to what is meant by causa causans we may gainfully refer to Black's Law Dictionary (5th Edn.) which defines that expression as under:

“Causa causans.—The immediate cause; the last link in the chain of causation.” The Advance Law Lexicon edited by Justice Chandrachud, former Chief Justice of India defines

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causa causans as follows:

“Causa causans.—The immediate cause as opposed to a remote cause; the ‘last link in the chain of causation’; the real effective cause of damage.”

84. The expression “proximate cause” is defined in the 5th Edn. of Black's Law Dictionary as under: “Proximate cause.—That which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury and without which the result would not have occurred.

Wisniewski v. Great Atlantic & Pacific Tea Co. [226 Pa Super 574 : 323 A2d 744 (1974)] , A2d at p. 748. That which is nearest in the order of responsible causation. That which stands next in causation to the effect, not necessarily in time or space but in causal relation. The proximate cause of an injury is the primary or moving cause, or that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the accident could not have happened, if the injury be one which might be reasonably anticipated or foreseen as a natural consequence of the wrongful act. An injury or damage is proximately caused by an act, or a failure to act, whenever it appears from the

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evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.”

15. From the available evidence on record and the case of the

prosecution, it could be seen that the prosecution has neither established

culpable "rashness" or "negligence" nor established that the act of the accused

was the "causa causans" for the death of the deceased.

16. For the foregoing reasons, the judgment of the Learned Principal

Sessions Judge passed in C.A. No. 671 of 2017 confirming the judgment of the

Trial Court is set aside and the accused is set at liberty.

17. Accordingly, the Criminal Revision is allowed. The bail bond if

any executed by the petitioner/accused shall stand cancelled.

13.06.2022 Index:yes/no

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Internet:yes