# 12 S.C.R. 881 STATE TR. P.S. LODHI COLONY, NEW DELHI v. SANJEEV NANDA

- **Citation:** [2012] 12 S.C.R. 881
- **Court:** Supreme Court of India
- **Decided:** 2012-08-03
- **Case number:** Criminal Appeal No. 1168 of 2012
- **Bench:** Deepak Verma, K.S. Radhakrishnan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/12-s-c-r-881-state-tr-p-s-lodhi-colony-new-delhi-v-sanjeev-nanda-28385
- **Pages:** 66

## Headnote

A
B
Penal Code, 1860 - s. 304 (Part II) - Motor accident -
Causing death of 6 and injury to one - As per medical
evidence accused-driver under influence of liquor at the time C
of accident - Injured witness and eye-witness turning hostile
- Trial court relying on one other witness convicting the
accused u/s. 304 (Part II) /PC and sentenced him to five years
imprisonment - High Court altered the conviction to that u/s.
304A and reduced the sentence to two years imprisonment D
- In appeal, held: Accused is liable to be convicted u/s. 304
(Part II) as he had sufficient knowledge that his act was likely
to cause death -
Sentence awarded by High Court is
maintained - In addition accused is directed to pay Rs. 50
lakhs to the Union Government to be utilized for providing E
compensation to the motor accident victims in hit and run
cases and in default to undergo one year SI; and further
directed to do community service for two years to be arranged
by Ministry of Social Justice and Empowerment and in default
to undergo imprisonment for two years.
F
Witness - Hostile witness - Evidentiary value - Held: If
a witness turns hostile to subvert the judicial process, the
courts should not stand as mute spectators and every effort
should be made to bring home the truth - Criminal judicial
system cannot be overturned by the gullible witnesses who G
act under pressure, inducement and intimidation.
Motor Accident - Hit and run case - Duty of the driver of
881
H
882
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A offending vehicle, duty of bystander - Discussed - Motor
Vehicles Act, 1988 - ss. 134 and 187.
The respondent-accused was prosecuted u/ss. 201,
304(1), 308 r/w s. 34 IPC. The prosecution case was that
8 at about 4.00 a.m. on the day of occurrence, the
respondent-accused was driving his car rashly and
negligently at a high speed, hitting seven persons and
thereafter he ran away. In the accident, 6 of the victims
were killed while the 7th victim (PW-2) survived. PW-1
was the eye-witness to the incident. In medical
C examination of the accused, it was found that he had
consumed alcohol the previous night. During trial, eye·
witness as well as the injured witness turned hostile. Trial
court relying on one other witness convicted the
accused uls. 304 (Part II) IPC and imposed upon him a
D jail sentence of five years. In appeal, High Court found the
accused guilty of the offence u/s. 304A IPC and reduced
the sentence to two years. Hence the present appeal.
E
Partly allowing the appeal,
HELD:
Per Court:
1. The judgment and order of conviction passed by
F the High Court u/s.304A IPC is set aside and the order of
conviction of trial court u/s. 304 (Part II) l.P.C. is restored
and upheld. However, it is appropriate to maintain the
sentence awarded by the High Court, which the accused
has already undergone. [Para 3] [946-C]
G
H
2. In addition, the accused is put to the following
terms: (1) Accused has to pay an amount of Rs.50 lakhs
(Rupees Fifty lakhs) 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,
STATE TR. P.S. LODHI COLONY NEW DELHI v.
883
SANJEEV NANDA
driver etc. could not be traced, like victims of hit and run A
cases. On default, he will have to undergo simple
imprisonment for one year. This amount would 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 B
Justice and Empowerment within two months. On
default, he will have to undergo simple imprisonment for
two years. [Para 4] [946-D-G]
PER DEEPAK VERMA, J:
HELD: 1.1 Accident means an unintended and
unforeseen injurious occurrence; something that does
not occur in the usual course of events or that could not
c
be reasonably anticipated. Thus, if the injury/death is
caused by an accident, that itself cannot be attributed to D
an intention. If inteRtion is proved and death

## Text

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(2012] 12 S.C.R. 881
STATE TR. P.S. LODHI COLONY, NEW DELHI
v.
SANJEEV NANDA
(Criminal Appeal No. 1168 of 2012)
AUGUST 3, 2012
[DEEPAK VERMA AND K.S. RADHAKRISHNAN, JJ.]
A
B
Penal Code, 1860 - s. 304 (Part II) - Motor accident -
Causing death of 6 and injury to one - As per medical
evidence accused-driver under influence of liquor at the time C
of accident - Injured witness and eye-witness turning hostile
- Trial court relying on one other witness convicting the
accused u/s. 304 (Part II) /PC and sentenced him to five years
imprisonment - High Court altered the conviction to that u/s.
304A and reduced the sentence to two years imprisonment D
- In appeal, held: Accused is liable to be convicted u/s. 304
(Part II) as he had sufficient knowledge that his act was likely
to cause death -
Sentence awarded by High Court is
maintained - In addition accused is directed to pay Rs. 50
lakhs to the Union Government to be utilized for providing E
compensation to the motor accident victims in hit and run
cases and in default to undergo one year SI; and further
directed to do community service for two years to be arranged
by Ministry of Social Justice and Empowerment and in default
to undergo imprisonment for two years.
F
Witness - Hostile witness - Evidentiary value - Held: If
a witness turns hostile to subvert the judicial process, the
courts should not stand as mute spectators and every effort
should be made to bring home the truth - Criminal judicial
system cannot be overturned by the gullible witnesses who G
act under pressure, inducement and intimidation.
Motor Accident - Hit and run case - Duty of the driver of
881
H
882
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A offending vehicle, duty of bystander - Discussed - Motor
Vehicles Act, 1988 - ss. 134 and 187.
The respondent-accused was prosecuted u/ss. 201,
304(1), 308 r/w s. 34 IPC. The prosecution case was that
8 at about 4.00 a.m. on the day of occurrence, the
respondent-accused was driving his car rashly and
negligently at a high speed, hitting seven persons and
thereafter he ran away. In the accident, 6 of the victims
were killed while the 7th victim (PW-2) survived. PW-1
was the eye-witness to the incident. In medical
C examination of the accused, it was found that he had
consumed alcohol the previous night. During trial, eye·
witness as well as the injured witness turned hostile. Trial
court relying on one other witness convicted the
accused uls. 304 (Part II) IPC and imposed upon him a
D jail sentence of five years. In appeal, High Court found the
accused guilty of the offence u/s. 304A IPC and reduced
the sentence to two years. Hence the present appeal.
E
Partly allowing the appeal,
HELD:
Per Court:
1. The judgment and order of conviction passed by
F the High Court u/s.304A IPC is set aside and the order of
conviction of trial court u/s. 304 (Part II) l.P.C. is restored
and upheld. However, it is appropriate to maintain the
sentence awarded by the High Court, which the accused
has already undergone. [Para 3] [946-C]
G
H
2. In addition, the accused is put to the following
terms: (1) Accused has to pay an amount of Rs.50 lakhs
(Rupees Fifty lakhs) 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,
STATE TR. P.S. LODHI COLONY NEW DELHI v.
883
SANJEEV NANDA
driver etc. could not be traced, like victims of hit and run A
cases. On default, he will have to undergo simple
imprisonment for one year. This amount would 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 B
Justice and Empowerment within two months. On
default, he will have to undergo simple imprisonment for
two years. [Para 4] [946-D-G]
PER DEEPAK VERMA, J:
HELD: 1.1 Accident means an unintended and
unforeseen injurious occurrence; something that does
not occur in the usual course of events or that could not
c
be reasonably anticipated. Thus, if the injury/death is
caused by an accident, that itself cannot be attributed to D
an intention. If inteRtion is proved and death is caused,
then it would amount to culpable homicide. [Para 33) [940G-H; 941-A]
Black's Law Dictionary - referred to.
1.2. In the case at hand, looking to the nature and
manner in which accident had taken place, it can safely
E
be held that respondent-accused had no intention to
cause death but certainly had the knowledge that his act
may result in death. There is nothing to prove that he knew F
that a group of persons was standing on the road he was
going to pass through. If that be so, there cannot be an
intention to cause death or such bodily injury as is likely
to cause death. Thus, respondent had committed an
offence u/s.304 (Part II) IPC. [Paras 39 and 40] [944-E-H) G
Ku/want Rai vs. State of Punjab (1981) 4 SCC 245;
Dalbir Singh vs. State of Haryana (2000) 5 SCC 82: 2000 (3)
SCR 1000; State of Maharashtra vs. Salman Salim Khan
(2004) 1 SCC 525; Alister Anthony Pareira vs. State of H
884
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A Maharashtra (2012) 2 SCC 648; State of Gujarat vs. Haiderali
Kalubhai (1976) 1 SCC 889: 1976 (3) SCR 303; Naresh Giri
vs. State of M.P 2008 (1) sec 791: 2001 (11) SCR 987 -
referred to.
8
1.3. The accident had occurred solely and wholly on
account of rash and negligent driving of BMW car by the
respondent, at a high speed, who was also intoxicated
at that point of time. This fact has been admitted by the
respondent-accused at the appellate stage in the High
C Court. For the simple reason that he had already driven
almost 16 kms from the place where he had started, to
the point where he actually met with the accident without
encountering any untoward incident would not go
absolutely in favour of the respondent. There is no
evidence on record that he had consumed. more liquor
D on their way also. It is extremely difficult to assess or
judge when liquor would show its effect or would be at
its peak. It varies from person to person. The prosecution
failed to use either the Breath Analyser or Alco Meter to
record a definite finding in this regard. Evidence of the
E doctors P.W.10 and P.W.16 shows that certain amount of
alcoholic contents was still found on examination of his
blood next day. It is a settled principle of law that if
something is required to be done in a particular manner,
then that has to be done only in that way or not at all.
F [Paras 26, 27, 28 and 29] [938-G-H; 939-A-G]
Nazir Ahmad v. King Emperor AIR 1936 PC 253 (2) -
referred to.
1.4. Soon after hitting one of the victims, accused did
G not apply the brakes so as to save at least some of the
lives. Since all the seven of them were standing in a
group, he had not realized that impact would be so
severe that they would be dragged for several feet.
Possibility also cannot be ruled out that soon after hitting
H
STATE TR. P.S. LODHI COLONY NEW DELHI v.
885
SANJEEV NANDA
them, respondent, a young boy of 21 years then, might A
have gone into trauma and could not decide as to what
to do until vehicle came to a halt. He must have then
realized the blunder he committed. [Para 31] [940-C-D]
2. Even though in the facts and circumstances of the
B
case, jail sentence awarded to him may not be just and
appropriate the mitigating circumstances tilt heavily in
favour of the accused. Therefore, it is appropriate, to
maintain the sentence awarded by the High Court, which
he has already undergone. No useful purpose would be
served by sending the accused to jail once again. C
However, this has been held so, looking to very peculiar
facts and features of this particular case and it may not be
treated as a precedent of general proposition of law on
the point, for other cases. [Paras 44 and 45] [945-D-G]
D
PER K.S. RADHAKRISHNAN, J. (Partly dissenting and
Supplementing!:
HELD: 1.1. Section 304A IPC carves out a specific
offence where death is caused by doing a rash or E
negligent act and that act does not amount to culpable
homicide not amounting to murder u/s. 299 IPC or murder
u/s. 300 IPC. Section 304A excludes all the ingredients of
Section 299 or Section 300. [Para 44] [919-A]
State of Gujarat v. Haidara/i Ka/ubhai (1976) 1 SCC 889:
F
1976 (3) SCR 303; Naresh Giri v. State of M.P. (2008) 1 SCC
791: 2007 (11) SCR 987; Alister Anthony Pareira v. State of
Maharashtra (2012) 2 SCC 648; Jagriti Devi v. State of
Himacha/ Pradesh (2009) 14 SCC 771: 2009 (10) SCR 167
- relied on.
G
Andhra Pradesh v. Rayavarapu Punnayya and Anr.
(1976) 4 SCC 382: 1977 (1) SCR 601 - referred to.
1.2. In the instant case, it has been brought out in
evidence that the accused-respondent was in an
H
886
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A inebriated state, after consuming excessive alcohol, he
was driving the vehicle without licence, in a rash and
negligent manner in a high speed which resulted in the
death of six persons. The accused had sufficient
knowledge that his action was likely to cause death and
B such an action would, in the facts and circumstances of
this case fall under Section 304(11) of the IPC and the trial
court has rightly held so and the High Court has
committed an error in converting the offence to Section
304A of the IPC. [Para 52] [925-A-B]
c
2.1. The key prosecution witnesses PW1, PW2 and
PW3 turned hostile. Even though the above mentioned
witnesses turned hostile and PW3 was later examined as
court witness, when their evidence is read with the
D evidence of others as disclosed and expert evidence, the
guilt of the accused had been clearly established. [Para
39) [916-B-C]
2.2. Witness turning hostile is a major disturbing
factor faced by the criminal courts in India. Reasons are
E many for the witnesses turning hostile, but especially in
high profile cases, there is a regularity in the witnesses
turning hostile, either due to monetary consideration or
by other tempting offers which undermine the entire
criminal justice system and people carry the impression
F that the mighty and powerful can always get away from
the clutches of law thereby, eroding people's faith in the
system. The evidence of hostile witness could not be
totally rejected, if spoken in favour of the prosecution or
the accused, but it can be subjected to closest scrutiny
G and that portion of the evidence which is consistent with
the case of the prosecution or defence may be accepted.
If a court finds that in the process, the credit of the
witness has not been completely shaken, he may after
reading and considering the evidence of the witness as
H a whole with due caution, accept, in the light of the
STATE TR. P.S. LODHI COLONY NEW DELHI v.
887
SANJEEV NANDA
evidence on the record that part of his testimony which
A
it finds to be creditworthy and act upon it. This is exactly
what was done in the instant case by both the trial court
and the High Court and they found the accused guilty.
[Para 40] [916-E-H; 917-A-B]
State of U.P. v. Ramesh Mishra and Anr. AIR 1996 SC
8
2766: 1996 (4) Suppl. SCR 631; K. Anbazhagan v.
Superintendent of Police and Anr. AIR 2004 SC 524: 2003
(5) Suppl. SCR 610 - relied on.
2.3. In the instant case even the injured witness, who
C
was present on the spot, turned hostile. If a witness
becomes hostile to subvert the judicial process, the
courts shall not stand as a mute spectator and every
effort should be made to bring home the truth. Criminal
judicial system cannot be overturned by those gullible D
witnesses who act under pressure, inducement or
intimidation. Further, Section 193 IPC imposes
punishment for giving false evidence but is seldom
invoked. [Para 41] [917-8-E]
Sidharlha Vashisht @ Manu Sharma v. State (NCT of
Delhi) (2010) 6 SCC 1: 2010 (4) SCR 103; Zahira Habibullah
Shaikh v. State of Gujarat AIR 2006 SC 1367: 2006 (2) SCR
1081 - relied on.
E
3.1. The plea that if a particular procedure has been
F
prescribed u/ss.185 and 203 of Motor Vehicles Act, 1988,
then that procedure has to be followed, has no application
to the facts of this case. Cumulative effect of the
provisions of ss. 185, 203 and 205 of the Act would
indicate that the. Breath Analyzer Test has a different G
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 H
888
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A meaning "in praesentr. 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
B breath analyzer test could not have been applied in the
present case 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.
The first accused was taken to the hospital at 12.29 PM
C on the next day of the incident, when his blood sample
was taken by the 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
D 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
E driving. 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. [Paras 26 and 28] [908-A-F; 909-A·B]
F
3.2. The plea 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 is not relevant for the
present case. First of all, that statement is not supported
G 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. [Para 29] [909-C-D]
Kurban Hussain v. State AIR 1965 SC 1616: 1965 SCR
H 622 - relied on.
STATE TR. P.S. LODHI COLONY NEW DELHI v.
889
SANJEEV NANDA
3.3. The plea that the accused was not under the A
influence of liquor or beyond the limit prescribed under
the Motor Vehicle 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. [Para 31]
[910-B·C]
B
3.4. The plea of fog, even if its presence had been
established, would only weaken the defence case and
the trial court and the High Court had rightly rejected that
plea. Even going by the evidence of PW15 (Director of
Metrological Department) and also the report exhibited as c
PW 15/B, there is nothing to show the presence of fog
on the spot of the accident. Report of PW-15 stated that
·the sky was mainly clear and there was no mention of the
presence of mist or fog at the spot in the report. The
visibility of 100 m of clear sky was reported by PW 15 in 0
exhibit 15/B which would demolish the theory of fog at
the spot of the accident and poor visibility. Assuming that
· there was presence of fog, it was the duty of the accused
either to stop the vehicle if the visibility was poor or he
should have been more cautious and driven the vehicle
carefully in a lesser speed so that it would not have
E
blurred his vision. This never happened since the
accused was in an inebriated state and the fact that six
persons died practically on the spot would indicate that
the vehicle was driven in a rash and negligent manner at
an excessive speed. [Para 33] [910-G-H; 911-A·C]
F
3.5. Admittedly, the first accused was not having an
Indian driving licence at the time of accident, though he
had produced a licence issued by the Licencing
Authority from a State in the United States. An inference
is drawn that the accused was not conversant in driving G
a vehicle on the Indian roads in the absence of an Indian
licence at the time of the accident. In any view, since the
accused was in an inebriated state, therefore, the
question whether he knew driving is not of much
consequence. [Para 35] [911-G-H; 912-A-C-E]
H
890
SL!f'REME COURT REPORTS
[2012] 12 S.C.R.
A
Su/eman Rahiman Mu/ani and Anr. v. State of
Maharashtra AIR 1968 SC 829: 1968 SCR 515 -
distinguished.
4.1. Generally, the policy which the court adopts
B 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
C 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. [Para 57] [927-E-G]
D
4.2. The imposition of sentence without considering
its effect on the social order in many cases is in reality a
futile exercise. Had the accused extended a helping
hand to the victims of the accident, caused by him by
E 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
F 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. [Para 58]
[927-G-H; 928-A-B]
'
4.3. Convicts in various countries, now, voluntarily
G 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
H the convicts will not only be appreciated by the
STATE TR. P.S. LODHI COLONY NEW DELHI v.
891
SANJEEV NANDA
community, it will also give a lot of solace to him, A
especially in a case where because of one's action and
inaction, human lives have been lost. In the facts and
circumstances of the case, where six human lives were
lost, adoption of this method would be good for the
society rather than incarcerating the convict further in jail. B
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. Therefore, it is ordered that the
accused has to pay an amount of Rs.50 lakh (Rupees c
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 D
one year. This amount be kept in a different head to be
used for the aforesaid purpose only. It is also ordered
that 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 E
two years. [Paras 60 and 61] [928-D-H; 929-A-C]
5.1. Section 134 of Motor Vehicles Act, 1988 casts a
duty on a driver to take reasonable steps to secure
medical attention for the-injured person. Section 187 of F
the Act provides for punishment relating to accident. The
accused had never extended any helping hand to the
victims lying on the road and fled from the scene. No
proceedings were instituted against the accused in the
case on hand invoking the above mentioned provisions. G
[Para 36] [912-F-G; 914-A-D]
Pt. Parmanand Katara v. Union of India (UO/) and
Ors. (1989) 4 sec 286: 1989 (3) SCR 997 - relied on.
5.2. No legal obligation as such is cast on a H
892
SUPREME COURT REPORTS
[2012) 12 S.C.R.
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
B unexpected catastrophe.
Private hospitals and
government hospitals, especially situated near the
Highway, where traffic is high, should be equipped with
all facilities to meet such emergency situations.
Ambulance with all medical facilities including doctors
c and supporting staff should be ready, so that, in case of
emergency, prompt and immediate medical attention
could be given. [Para 37] (915-A-C]
5.3. This Court in *Paschim Banga Khet Mazdoor Samiti
gave various directions to the Union of India and other
D States to ensure immediate medical attention in such
si.tuations 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
E of India and also many State Governments.
Immediate
attention of the Union of India and other State
Governments, is called upon if they have not already
implemented those directions, which they may do at the
F
earliest. [Para 37] (915-C-F]
*Paschim Banga Khet Mazdoor Samiti and Ors. v. State
of West Bengal and Ors. (1996) 4 SCC 37: 1996 (2) Suppl.
SCR 331 - relied on.
5.4. Proper attention by the passing vehicles will also
G 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
H they will have to face no hassle and will be properly
STATE TR. P.S. LODHI COLONY NEW DELHI v.
893
SANJEEV NANDA
rewarded. Therefore, the Union of India and State A
Governments are directed 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, huma_n lives could be
saved. [Para 38] [915-G-H; 916-A-B]
B
Case Law Refe.rence:
In the judgment of Deepak Verma, J.
(1981) 4 sec 245
2000 (3) SCR 1000
(2004) 1 sec 525
(2012) 2 sec 648
AIR 1936 PC 253 (2)
1976 (3) SCR 303
2007 (11) SCR 987
Referred to
Para 25
Referred to
Para 25
Referred to
Para 25
Referred to
Para 25
Referred to
Para 29
Referred to
Para 34
Referred to
Para 34
c
D
In the Judgment of K.S. Radhakrishnan. J.:
E
Relied on
Para 29
1965 SCR 622
1968 SCR 515
1989 (3) SCR 997
Distinguished
Para 35
Relied on
Para 36
F
1996 (2) Suppl. SCR 331 Relied on
1996 (4) Suppl. SCR 631 Relied on
2003 (5) Suppl. SCR 610 Relied on
2010 (4) SCR 103
2006 (2) SCR 1081
1976 (3) SCR 303
Relied on
Relied on
Relied on
Para 37
Para 40
Para 40
G
Para 41
Para 41
Para 45
H
A
B
894
SUPREME COURT REPORTS
[2012) 12 S.C.R.
2007 (11) SCR 987
Relied on
Para 47
(2012) 2 sec 648
Relied on
Para 48
2009 (10) SCR 167
Relied on
Para 49
1977 (1) SCR 601
Referred to
Para 50
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1168 of 2012.
From the Judgment & Order dated 20.7.2009 of the High
c Court of Delhi at New Delhi in Criminal Appeal No. 807 of
2008.
Sidharth S. Dave, Anil Katiyar for the Appellant.
Ram Jethmalani, Lata Krishnamurti, R.N. Karanjawala,
D Manik Karanjawala, Sandeep Kapur, Ravi Sharma (for
Karanjawala & Co.,) for the Respondent.
E
The Judgments & Order of the Court was delivered by
K.S. RADHAKRISHNAN, J,
Delay condoned.
Leave granted.
1. I had the benefit and privilege of carefully considering
F the judgment delivered by my esteemed brother. However, I
find it difficult to agree with some of the findings and
observations recorded therein, even though I agree with most
of the major conclusions, however, with a caveat. I, therefore,
deem it fit and proper to supplement it with few suggestions
G and directions.
2. Facts have been meticulously and concisely dealt with
by my learned Brother and I do not want to burden my judgment
with those voluminous facts which find a place in the judgment
H of the trial court as well as the High Court.
STATE TR. P.S. LODHI COLONY NEW DELHI v.
895
SANJEEV NANDA [K.S. RADHAKRISHNAN, J.]
3. The controversy in this case had been considerably A
narrowed down since learned senior counsel appearing for the
accused - Sanjeev Nanda admitted that it was he, who was
· driving the BMW car bearing registration No. M-312 LYP in the
early hours of 10.01.1999, which resulted in the death of six
persons, leaving another injured. Admission was made after B
a prolonged trial, spanning over a period of nine years, that too
after the trial court, appreciating the oral and documentary
evidence adduced by the prosecution and defence, came to
the conclusion that he was guilty and convicted him for the
offence under Section 304(11) of the IPC and sentenced him to c
undergo rigorous imprisonment for five years.
4. The accident had occurred in early hours of 10.01.1999
near the Car Care Centre, Lodhi Road. Charges were framed
against the first accused and others on 08.04.1999. Charges
under Sections 338, 304 of the IPC were framed against the D
first accused - Sanjeev Nanda and another for causing death
of six persons and for attempting to commit culpable homicide
not amounting to murder of Manoj Malik. Another charge was
also framed under Section 201 /34 against the first accused and
two others for fleeing away from the spot with the intention to E
screen themselves from legal punishment.
5. We are in this case primarily concerned with the charge
against Sanjeev Nanda - the first accused. Prosecution in
order to establish the guilt examined 61 witnesses, of which
F
Sunil Kulkarni was given up by the prosecution and was
examined as a court witness. Upon completion of the
prosecution evidence, accused persons were questioned and
statements of the accused persons were recorded under
Section 313 of the Cr.P.C. On the side of the accused, DW1
G
to DW9 were examined. Documentary evidences such as FSL
report exhibited as P16/A etc. were also produced. The trial
court vide judgment dated 02.09.2008, as already stated, found
the first accused guilty under Section 304(11) of the IPC and
awarded the sentence of five years rigorous imprisonment.
H
896
SUPREME COURT REPORTS
(2012] 12 S.C.R.
A
6. Aggrieved by the judgment of the trial court, the first
accused filed Criminal Appeal No. 807 of 2008 before the High
Court and the High Court after examining the contentions of the
parties converted the conviction from Section 304(11) to Section
304A of the IPC and reduced the sentence to two years. The
B accused had already undergone the punishment awarded by
the High Court and no appeal was preferred by him against the
judgment of the High Court or the findings recorded by the High
Court. The present appeal has been preferred by the State
contending that the High Court has committed an error in
c converting the conviction from Section 304(11) to Section 304A
of the IPC considering the seriousness of charges proved and
the gravity of the offence.
7. Shri Harin P. Raval, Additional Solicitor General
appearing for the State, submitted that in the facts and
D circumstances of the case, the High Court was not justified in
converting the conviction from Section 304(11) to 304A of the
IPC, raising various grounds. Learned ASG submitted that the
High Court had misdirected itself in concluding that the facts
of the case would not attract 304(11) of the IPC. Shri Raval
E submitted that it was the first accused who had driven the
vehicle on a high speed after consuming liquor and that too
without a licence, causing death of six persons and injuring one,
leaving them unattended. Learned ASG further submitted that
the gravity of the offence was of such a nature that ii is touching
F the boundaries of Section 300(4) of the IPC. Further, it was
also pointed out by Shri Raval that the knowledge of the second
degree comprehended from Part-Ill of Section 299 of the IPC,
where death is caused by the offender by an act which offender
knows is likely to cause death, would be attracted. Reference
G was made to the judgments of this Court in State of Gujarat v.
Haidarali Ka/ubhai (1976) 1 SCC 889, Ku/want Rai v. State
of Punjab (1981) 4 SCC 245, State of Maharashtra v. Salman
Salim Khan & Another (2004) 1 SCC 525 and Alister Anthony
Pareira v. State of Maharashtra (2012) 2 SCC 648. Learned
H counsel referred to the oral and documentary evidence, the
STATE TR. P.S. LODHI COLONY NEW DELHI v.
897
SANJEEV NANDA [K.S. RADHAKRISHNAN, J.]
scene of crime as narrated by Kailash Chand, S.I. in Rukka,
A
as well as site plan and submitted that the scene of occurrence,
which was horrifying, clearly indicates beyond doubt, that the
accused had knowledge that the persons who were hit by the
car might die but left the scene of occurrence without caring
for human lives.
B
8. Shri Raval also extensively referred to the oral and
documentary evidence adduced in this case and submitted that
the trial court as well as the High Court had concurred in finding
that it was the accused who had committed the offence over
and above admission of the first accused. Prosecution case,
C
it was pointed out, mainly rested on the oral evidence of PW1
- Hari Shankar, an employee of petrol pump, PW2- Manoj
Malik, injured and an employee of a hotel and PW3 - Sunil
Kulkarni, the court witness though, given up by the prosecution.'
Further, Shri Raval submitted that the evidence of all these
D
witnesses, though turned hostile, have to be appreciated in the
light of the peculiar facts and circumstances of this case and
also taking note of the admission of the first accused that it was
he who had driven the vehicle on the fateful day. Learned
Counsel also submitted that the court should appreciate the
E
circumstance under which most of the prosecution witnesses
turned hostile and the incidents which led to the judgment of
this Court in R.K. Anand it. Registrar, Delhi High Court [(2009)
8 sec 106] cannot be lost.sight of, which revealed the unholy
alliance, then defence counsel. had with the special public
F
prosecutor for subverting the criminal trial of this case. PW2,
who got injured in the accident, turned ho!!tile so as to subvert
trial. Evidently, all these were done at the behest of the accused
though the prosecution was successful in bringing home the
guilt of the accused, as found by the courts below.
G
9. Shri Raval submitted that since learned counsel for the
accused had admitted that it was the first accused who was
driving the vehicle on the fateful day resulting in the death of
six persons, the only question that remains to be considered
H
898
SUPREME COURT REPORTS
[2012) 12 S.C.R.
A is whether the accused deserves proper punishment for the
offence committed under Section 304(11) of the IPC or whether
the conviction or sentence awarded by the High Court under
Section 304A of the IPC would be inadequate punishment, so
far as the facts and circumstances of this case are concerned.
B Shri Raval submitted that the accused deserves harsher
punishment, as rightly held by the trial court considering the fact
that he was driving the vehicle in an inebriated state, without
licence and that he had left the scene of occurrence without
extending any helping hand to the victims either by taking them
c to the hospital or reporting the accident to the police at the
earliest point of time. Shri Raval placed considerable reliance
on the evidence of PW-16 and the FSL report proved on record
as Exhibit 16/A and pointed out that the report indicated the
presence of 0.115% alcohol in the blood sample of the accused.
0 Shri Raval submitted that the High Court had correctly
understood the scope and ambit of Section 185 of the Motor
Vehicles Act r/w Section 203 of the Act and came to a correct
conclusion that the presence of 0.115% alcohol was much
above the limit of 30mg prescribed under the Motor Vehicles
E Act and it can definitely affect the ability to drive the vehicle in
a normal manner.
10. Shri Raval also submitted that the fog and lack of
visibility on the site projected by the counsel for the accused
was rightly rejected by the High Court. Learned counsel pointed
F out that this argument was neither raised before the trial court
nor in the grounds of appeal taken before the High Court.
Further, PW 15 - Dr. S.C. Gupta's report had not stated the
presence of fog on the site of the accident. On the other hand,
PW15 stated that the sky was clear and the mention of mist in
G the report was of no consequence. Shri Raval submitted that
the car was coming in a high speed and considering the fact
that there was clear visibility, the only conclusion possible was
that the accused was in a drunken state and nobody knew
whether he had driven the car 16 kms prior to the accident.
H Shri Raval, therefore submitted that the High Court was not
STATE TR. P.S. LODHI COLONY NEW DELHI v.
899
SANJEEV NANDA [K.S. RADHAKRISHNAN, J.)
justified in holding that the offence will attract Section 304A of A
the IPC and not 304 (II) of the IPC.
11. Shri Ram Jethmalani, learned senior counsel
appearing for the respondent - accused, submitted that the
accused had already undergone the sentence awarded by the
8
High Court and since no sufficient grounds have been made
by the prosecution to upset the conclusion reached by the High
Court that in the facts and circumstances of the case, the
offence will fall only under Section 304A of the IPC. Learned
senior counsel submitted that the accused had admitted the
factum of the accident that, he was driving the vehicle on the C
morning hours of 10.01.1999 so as to give a quietus to the
entire controversy and to purchase peace for the accused, who
had undergone agony of the criminal trial for over a decade.
12. Learned senior counsel submitted, the factum of D
admission made by the accused in this regard cannot be put
against him or prejudice the court in appreciating various
contentions raised in defending his case. Shri Jethmalani,
learned senior counsel, submitted, though the accident had
occurred in the morning hours of 10.01.1999, .the trial was
E
prolonged due to various reasons - mainly due to the lethargic
attitude of the prosecution and also due to the delay in the court
proceedings which cannot be put against the accused. Further,
he had already undergone the sentence of two years awarded
by the High Court and subsequently he got married and has
F
also been blessed with a daughter and it will be too harsh to
punish him with imprisonment for a further term.
13. Learned senior counsel also pointed out his behavior
and conduct in jail was also well-acknowledged and he has also
not been involved in any criminal offence subsequently. Further,
G
the families of the victims were adequately compensated in
monetary terms and he was only 21 years on the date of the
incident. These factors according to the learned senior counsel
should weigh with the court and the appeal be not entertained.
Learned senior counsel also attacked the various findings
H
.
900
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A recorded by the High Court and pointed out that since the
accused had already undergone the punishment, no appeal was
preferred in challenging those findings and in case where the
State is seeking enhancement of the punishment, the accused
can always raise his defence against various grounds raised
8 by the prosecution in the appeal, since the appeal is only the
continuation of the trial.
14. Learned senior counsel pointed various instances of
judicial unfairness meted out to the respondent. Reference was
made to the evidence of Sunil Kulkarni - the court witness.
C Learned senior counsel pointed out free and fair trial is sine
qua non of Article 21 of the Constitution of India, which was
denied to the accused in the instant case. In support of his
contention regarding unfair trial, reference was made to the
judgment in Jamaica (Constitutional) Order as referred in
D Herbert Bell v. Director of Public Prosecutions & Anr. [(1985)
A.C. 937], Datar Singh v. State of Punjab [(1975) 4 SCC 272],
Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC
116] and Chandran@ Surendran and Anr. v. State of Kera/a
[1991 Supp(1) SCC 39]. Learned senior counsel also pointed
E out that the judgment in R.K. Anand (supra) had also influenced
the judicial mind, especially that of the trial judge and that the
High Court has rightly converted the conviction from Section
304(11) of the IPC to Section 304A of the IPC and that the
accused had undergone the punishment.
F
15. Learned senior counsel also submitted that the
prosecution had committed a grave error in suppressing the
PCR messages which were of great significance for the
accused to prove his defence. PW2, one of the victims of the
accident who was in the Jeep, also disclosed various facts
G which were suppressed by the prosecution. Learned senior
counsel also pointed out Kulkarni was a totally unreliable
witness and the statements made by him were given
importance by the trial court as well as the High Court in
reaching various conclusions against the accused.
H
STATE TR. P.S. LODHI COLONY NEW DELHI v.
901
SANJEEV NANDA [K.S. RADHAKRISHNAN, J.]
16. Shri Jethmalani submitted there is no evidence on A
record to prove that the accused was intoxicated in the sense
in which intoxication was understood under Section 85 of the
IPC nor in the sense of his ability to control the motor vehicle
being substantially impaired as a result of consuming alcohol
as laid down by Section 185(1) of the fl!l.V. Act. Further, it was B
also pointed that the test statutorily recognized for drunken
driving is the breath analyzer test for drunken driving and the
accused was not subjected to that test. Learned counsel has
submitted that when a statute prescribes a particular method
the prosecution has to follow that method and not any other c
method. Reliance was placed on the judgments of the House
of Lords in Rowlands v. Hamilton [(1971) 1 All E.R. 1089],
Gumb/ey v. Cunningham [(1989) 1 All E.R. 5], and judgments
of the Privy Council in Nazir Ahmad v. Emperor [AIR 1936 PC
253], State of Uttar Pradesh v. Singhara Singh and Ors. [AIR D
1964 SC 358].
17. Learned senior counsel also submitted that no reliance
could be placed on the evidence tendered by PW-16 - Dr.
Madhulika Sharma, Senior Scientific Officer as well as the
evidence of PW10 - Dr. T. Milo and submitted that there is E
nothing to show the vehicle was driven in a reckless or negligent
manner so as to infer that the accused was drunk. On the other
hand, learned senior counsel pointed out that the accused could
not have avoided the accident since policemen and others were
standing on the middle of the road on a foggy day when the
F
visibility was poor. Further, it was pointed out that the accused
had driven car about 16 kms before the accident without any
untoward incident, which would indicate that, his condition was
stable and he had not consumed liquor beyond the prescribed
lim~.
G
18. Learned senior counsel also submitted that the
evidence of PW 15 - Dr. S.C. Gupta was also not properly
appreciated by the courts below, so also the evidence tendered
on the presence of fog. The presence of fog, according to the
learned senior counsel, clearly restricted the visibility and the H
902
SUPREME COURT REPORTS
(2012] 12 S.C.R.
A
entire fault cannot be put on the accused. Reference was also
made to the evidence of PW2 on the presence of fog on the
morning of 10.01.1999.