# ALISTER ANTHONY PAREIRA v. STATE OF MAHARASHTRA

- **Citation:** [2012] 1 S.C.R. 145
- **Court:** Supreme Court of India
- **Decided:** 2012-01-12
- **Case number:** Criminal Appeal No. 1318-1320 of 2007
- **Bench:** R.M. Lodha, Jagadish Singh Khehar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/alister-anthony-pareira-v-state-of-maharashtra-28005
- **Pages:** 50

## Headnote

PENAL CODE, 1860:
A
B
ss.304 (Part-I/) and 338 - Causing of death and grievous c
hurt by rash and negligent driving - Permissibility of trial and
conviction of a person for both offences for a single act of the
same transaction - Held: Indictment of an accused u/ss 304
(Part II) and 338 can co-exist in a case of single rash or
negligent act where such an act is done with the knowledge
0
of likelihood of its dangerous consequences - It cannot be said
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
punishmc nt is for the act but also for the resulting homicide
E
and a case may fall within s. 299 or s. 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
-There is no impediment in law for an offender being charged
with the offence punishable uls 304 (Part II) and also u/ss 337
F
and 338 /PC - 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.
s.~04 (Part-II) r/w s.299 (last clause) - Seven labourers,
G
while asleep killed and 8 others suffered grievous injuries by
rash and negligent driving - Nature of the offence - Held: Rash
or negligent driving on a public road with the knowledge of the
dangerous character and the likely effect of the act and
145
H
146
SUPREME COURT REPORTS
[2012] 1 S.C.R.
A resulting in death may fall in the category of culpable
homicide not amounting to murder - 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
B 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 punishable
uls 304 (Part II) - Jn the instant case, the essential ingredients
of s. 304 (Part II) have been successfully established by the
c prosecution against the accused - The view of the High Court
being consistent with the evidence on record and law, upheld
- Judicial notice.
ss.304 (Part-II), 337 and 338 - Death of seven labourers
while asleep and grievous injuries to B others caused by rash
D and negligent driving - Sentence - Held: The facts and
circumstances of the case which have been proved by the
prosecution in bringing home the guilt of the accused for the
offence punishable u/s 304(Part II) undoubtedly show
despicable aggravated offence warranting punishment
E proportionate to the crime - Seven precious human lives were
Jost by the act of the accused - For an offence like this which
has been proved against the accused, 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, the Court
F refrains from considering the matter for enhancement.
SENTENCE/SENTENCING
Sentence uls 304-A /PC - Held: The principle of
proportionality in sentencing a crime doer is well entrenched
G in criminal jurisprudence - As a matter of law, proportion
between crime and punishment bears most relevant influence
in determination of sentencing the crime doer - Court has to
take into consideration all aspects including social interest
and consciousness of the society for award of appropriate
H sentence - In view of the large number of accidental deaths
ALISTER ANTHONY PAREIRA v. STATE OF
147
MAHARASHTRA
due to speeding and drunk driving , it is high time that law A
makers revisit the sentencing policy reflected in s. 304 A /PC.
Framing of charge - Accused charged with the offences
punishable ulss.304 (Part-II) and s.338 /PC for causing death
of 7 labourers and injuries to 8 others by rash and negligent 8
driving - Words 'drunken condition' not stated in

## Text

_Characters 0–39,334 of 97,067. This is a partial read: ask again with offset=39334 for what follows._

[2012] 1 S.C.R. 145
ALISTER ANTHONY PAREIRA
v.
STATE OF MAHARASHTRA
(Criminal Appeal No. 1318-1320 of 2007)
JANUARY 12, 2012
[R.M. LODHA AND JAGADISH SINGH KHEHAR, JJ.]
PENAL CODE, 1860:
A
B
ss.304 (Part-I/) and 338 - Causing of death and grievous c
hurt by rash and negligent driving - Permissibility of trial and
conviction of a person for both offences for a single act of the
same transaction - Held: Indictment of an accused u/ss 304
(Part II) and 338 can co-exist in a case of single rash or
negligent act where such an act is done with the knowledge
0
of likelihood of its dangerous consequences - It cannot be said
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
punishmc nt is for the act but also for the resulting homicide
E
and a case may fall within s. 299 or s. 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
-There is no impediment in law for an offender being charged
with the offence punishable uls 304 (Part II) and also u/ss 337
F
and 338 /PC - 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.
s.~04 (Part-II) r/w s.299 (last clause) - Seven labourers,
G
while asleep killed and 8 others suffered grievous injuries by
rash and negligent driving - Nature of the offence - Held: Rash
or negligent driving on a public road with the knowledge of the
dangerous character and the likely effect of the act and
145
H
146
SUPREME COURT REPORTS
[2012] 1 S.C.R.
A resulting in death may fall in the category of culpable
homicide not amounting to murder - 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
B 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 punishable
uls 304 (Part II) - Jn the instant case, the essential ingredients
of s. 304 (Part II) have been successfully established by the
c prosecution against the accused - The view of the High Court
being consistent with the evidence on record and law, upheld
- Judicial notice.
ss.304 (Part-II), 337 and 338 - Death of seven labourers
while asleep and grievous injuries to B others caused by rash
D and negligent driving - Sentence - Held: The facts and
circumstances of the case which have been proved by the
prosecution in bringing home the guilt of the accused for the
offence punishable u/s 304(Part II) undoubtedly show
despicable aggravated offence warranting punishment
E proportionate to the crime - Seven precious human lives were
Jost by the act of the accused - For an offence like this which
has been proved against the accused, 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, the Court
F refrains from considering the matter for enhancement.
SENTENCE/SENTENCING
Sentence uls 304-A /PC - Held: The principle of
proportionality in sentencing a crime doer is well entrenched
G in criminal jurisprudence - As a matter of law, proportion
between crime and punishment bears most relevant influence
in determination of sentencing the crime doer - Court has to
take into consideration all aspects including social interest
and consciousness of the society for award of appropriate
H sentence - In view of the large number of accidental deaths
ALISTER ANTHONY PAREIRA v. STATE OF
147
MAHARASHTRA
due to speeding and drunk driving , it is high time that law A
makers revisit the sentencing policy reflected in s. 304 A /PC.
Framing of charge - Accused charged with the offences
punishable ulss.304 (Part-II) and s.338 /PC for causing death
of 7 labourers and injuries to 8 others by rash and negligent 8
driving - Words 'drunken condition' not stated in the charge -
Charge neither framed with the offence punishable u/s 185,
Motor Vehicles Act nor u/s 66 (1) (b) of Bombay Prohibition
Act - Held: Omission of the words 'in drunken condition' in the
charge is not very material and, in any case, such omission C
has not at all resulted in prejudice to the accused as he was
fully aware of the prosecution evidence which consisted of his
drunken condition at the time of incident.
CODE OF CRIMINAL PROCEDURE, 1973:
s. 313 - Examination of accused - Explained - Held: D
. Burden is on the accused to establish that by not apprising
him of the incriminating evidence and the incu/patory
materials that had come in the prosecution evidence against
him, a prejudice has been caused resulting in miscarriage of
justice - During investigation, the police concluded that the E
rash and negligent driving of the accused by consuming
alcohol killed seven persons and caused injuries to eight
others - The conclusion drawn on the completion of
investigation was a/so put to him - Neither the doctor, who
examined the accused immediately after the incident and F
reported him to be in drunken condition, nor the Investigating
Officer, who deposed of having received the chemical
examination report, were cross-examined in this respect - It
cannot be said that the accused was not made fully aware of
the prosecution evidence that he had driven the car rashly or G
negligently in a drunken condition - He had full opportunity
to say what he wanted to say with regard to the prosecution
evidence.
The appellant was charged with offences punishable H
148
SUPREME COURT REPORTS
[2012) 1 S.C.R.
A u/ss 304 (Part II) and 338 IPC for causing death of 7
labourers and grievous injuries to 8 others who were
sleeping on footpath, by running a speeding car over
them. The trial court convicted the appellant of the
offences punishable u/ss 304 A and 337 IPC and
B sentenced him to simple imprisonment for six months
with a fine of Rs. 5 lakh u/s 304 A and simple
imprisonment for 15 days u/s 337 IPC. The High Court
convicted the accused u/ss 304 (Part II), 338 and 337 IPC
and sentenced him to undergo rigorous imprisonment for
c 3 years u/s 304 (Part II) with a fine of Rs. 5 Lakh, rigorous
imprisonment for one year u/s 338, and rigorous
imprisonment for six months u/s 337 IPC.
D
E
F
G
H
In the appeals filed by the accused the questions for
consideration before the Court were:
(I)
'Whether it is permissible to try and convict a
person for the offence punishable under
Section 304 (Part II) IPC and the offence
punishable under Section 338 IPC 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, (fhrticularly the evidence relating
to appellant's drunken condition, afthe time of
his examination u/s 313 of the Code, the trial
and conviction of the appellant got affected?
(iii)
Whe~her prosecution evidence established
beyond reasonable doubt the commission of
the offences by the appellant punishable u/ss
304 (Part II), 338 and 337 IPC?
(iv) Whether sentence awarded to the appellant by
the High Court for the offence punishable u/s
ALISTER ANTHONY PAREIRA v. STATE OF
149
MAHARASHTRA
304 (Part II) IPC required any modification?
A
Dismissing the appeals, the Court
HELD: 1.1. There is no impediment in law for an
offender being charged for the offences punishable u/s
304 (Part II) IPC and also u/ss 337 and 338 IPC. The two
8
charges u/ss 304 (Part II) and 338 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. It cannot be said that two
charges are mutually destructive. [para 39 and 43] [170C
F; 171-H; 172-A]
1.2. 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 D
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
E
of the provisions of the IPC • the cases which fall within
last clause of s. 299, but not within clause 'fourthly' of
s.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 u/s 304 (Part
F
II) IPC. 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
G
culpability of homicide not amounting to murder and
punishable u/s 304 (Part II) IPC. [para 40-41] [171-8-F]
1.3. Section 304A IPC takes out of its ambit the cases
of death of any person by doing any rash or negligent H
150
SUPREME COURT REPORTS
(2012] 1 S.C.R.
A act amounting to culpable homicide of either description.
Applicability of s. 304A IPC 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 s.
B 304A IPC is death caused due to rash or negligent act.
The three things which are required to be proved for an
offence punishable u/s 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,
c though it did not amount to culpable homicide of either
description. Like s. 304A, ss. 279, 336, 337 and 338 IPC
are attracted for only the negligent or rash act.[para 31,
37 and 38) [168-E-F; 170-A-D]
Empress of India v. /du Beg 1881(3) All 776 - referred
D to.
1.4. By charging the appellant for the offence
punishable u/ s 304 (Part II) and 338 IPC, no prejudice has
been caused to him. The appellant was made fully aware
E of the charges against him and there is no failure of
justice. [para 44) [172-B-C]
In Prabhakaran Vs. State of Kera/a 2007 (7) SCR 1141
= 2007 (14) sec 269 - distinguished
F
2.1. It is a fact that no charge u/s 185 of the Motor
Vehicles Act, 1988 and s. 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 for offence u/s 304 (Part II) IPC, the words
G 'drunken condition' are not stated. However, if the charge
u/s 304 Part II IPC framed against the appellant is seen, it
would be clear that the ingredients of s.304 Part 11 IPC are
implicit in that charge. The omission of the words 'in
drunken condition' in the charge is not very material and,
H in any case, such omission has not at all resulted in
ALISTER ANTHONY PAREIRA v. STATE OF
151
MAHARASHTRA
prejudice to the appellant as he was fully aware of the
A
prosecution evidence which consisted of drunken
condition of the appellant at the time of incident. [para 47
and 50] [174-8-D; 176-B-C]
Anna Reddy Sambasiva Reddy & Ors. vs. State of 8
Andhra Pradesh 2009 (6) SCR 755 = 2009 (12 ) SCC 546;
Jai Dev Vs. State of Punjab 1962 SCR 489 =AIR 1963 612;
and Shivaji Sahabrao Bobade and Anr. Vs. State of
Maharashtra 2008 (10) SCR 1115 = 2008 (1) SCC 328 -
relied on
Asraf Ali Vs. State of Assam 2005 Suppl. (1) SCR 562
= 2005 (5) sec 554 -referred to.
c
2.2. As regards the examination of the accused u/s
313 CrPC, from the decided cases, the legal position
0
appears to be this : the accused must be apprised of
incriminating evidence and materials brought in by the
prosecution against him to enable him to explain and
respond to such evidence and material. Failure in not
drawing the attention of the accused to the incriminating
E
evidence and inculpatory materials brought in by
prosecution specifically, distinctly and separately may
not by itself render the trial against the accused void and
bad in law; firstly, if having regard to ail the questions put
to him, he was afforded an opportunity to explain what
he wanted to say in respect of prosecution case against
F
him and, secondly, such omission has not caused
prejudice to him resulting in failure of justice. The burden
is on the accused to establish that by not apprising him
of the incriminating evidence and the inculpatory
materials that had come in the prosecution evidence
G
against him, a prejudice has been caused resulting in
miscarriage of justice. [para 57] [179-E-H]
2.3. In the instant case, the accused, in his statement
u/s 313, was informed about the evidence relating to the
H
152
SUPREME COURT REPORTS
[2012] 1 S.C.R.
A incident. During investigation, the police concluded that
the rash and negligent driving of the appellant by
consuming alcohol caused the death of seven persons
and injury to the eight persons. The conclusion drawn on
the completion of investigation was also put to him. The
B appellant's attention was also invited to the materials
such as photographs, mechanical inspections of the car,
seized articles, liquor bottle, etc. Neither PW-1, the doctor,
who examined the accused immediately after the incident
and found h·im in drunken condition, nor PW 18, the
C investigating officer, who deposed having received the
chemical examiner's report, were cross examined by the
defence in this respect. Thus, it cannot be said that the
appellant was not made fully aware of the prosecution
evidence that he had driven the car rashly or negligently
0 in a drunken condition. He had full opportunity to say
what he wanted to say with regard to the prosecution
evidence. [para 51,53,54 and 58) [176-D; 180-A, F; 177-B;
180-G-H; 181-A]
3.1. The High Court has held: (1) the accused at the
E time of driving the car was under the influence of liquor;
(2) he drove the car in drunken condition at a very high
speed; and (3) he failed to control the vehicle and the
vehicle could not be stopped before it ran over the
people sleeping on the pavement. The High Court took
F judicial notice of the fact that in Mumbai people do sleep
on pavements. The accused was also aware of the fact
that at the place of occurrence people sleep, as he was
a resident of that area. The High Court took note of the
fact that the accused had admitted the accident and his
G explanation was that the accident occurred due to
mechanical failure and the defect that was developed in
the vehicle but found his explanation improbable and
unacceptable. The High Court held that the accused
r.ould be attributed to have a specific knowledge of the
H
ALISTER ANTHONY PAREIRA v. STATE OF
153
MAHARASHTRA
event that happened. It, thus, concluded that the accused
A
had knowledge and in any case such knowledge would
be attributable to him that his actions were dangerous or
wanton enough to cause injuries which may even result
into death of persons. [para 65] [184-E-H; 185-A-D]
3.2. There is no justifiable ground to take a view
different from that of the High Court. The evidence and
materials on record prove beyond reasonable doubt that
the appellant can be attributed with knowledge that his
B
act of driving the vehicle at a high speed in the rash or C
negligent manner was dangerous enough and he knew
that one result would very likely be that people who were
asleep on the pavement may be hit, should the vehicle
go out of control. The essential ingredients of s. 304 (Part
II) IPC have been successfully established by the
prosecution against the appellant. The High Court noticed D
that two injured persons, namely, PW-6 and PW-8 had
sustained injuries as covered by the 'grievous' hurt u/s
320 IPC. Charge u/s 338 IPC against the appellant is, thus,
clearly established. This Court upholds the view of the
High Court being consistent with the evidence on record
E
and law. [para 66-67] [185-E-H; 186-AJ
3.3. Insofar as charge u/s 337 IPC is concerned, it is
amply established from the prosecution evidence that
PW-5, PW-7, PW-9 and PW-10 received various injuries;
F
they suffered simple hurt. The trial court as well as the
High Court were justified in convicting the appellant of
the offence punishable u/s 337 IPC as well. [para 68] [186EJ
4.1. One of the prime objectives of the criminal law G
is imposition of appropriate, adequate, just and
proportionate sentence commensurate with the nature
and gravity of crime and the manner in which .the crime
is done. The courts have evolved certain principles: twin
H
154
SUPREME COURT REPORTS
[2012] 1 S.C.R.
A objective of the sentencing policy is deterrence and
correction. What sentence would meet the ends of justice
depends on the facts and circumstances of each case
and the court must keep in mind the gravity of the crime,
motive for the crime, nature of the offence and all other
B attendant circumstances.The principle of proportionality
in sentencing a crime doer is well entrenched in criminal
jurisprudence. As a matter of law, proportion between
crime and punishment bears most relevant influence in
determination of sentencing the crime doer. The court
c has to take into consideration all aspects including social
interest and consciousness of the society for award of
appropriate sentence. [para 70-71) [187-8-E]
D
State of Karnataka v. Krishnappa 2000 (2) SCR 761 =
2000 (4) sec 75 - relied on
Dhananjoy Chatterjee alias Dhana v. State of WB. 1994
(1) SCR 37 = 1994 (2) SCC 220 ; Ravji alias Ram Chandra
v. State of Rajasthan 1995 ( 6 ) Suppl. SCR 195 = 1996 (2)
SCC 175; State of M.P. v. Ghanshyam Singh 2003 (3) Suppl.
E SCR 618 = 2003 (8) SCC 13, Surjit Singh v. Nahara Ram &
Anr. 2004 Suppl. (3 ) SCR 356 = 2004 (6) SCC 513, State
of M.P. v. Munna Choubey 2005 (1) SCR 781 = 2005 (2)
SCC 71 O; Hari Singh v. Sukhbir Singh & Ors. 1988 (2) Suppl.
SCR 571 = 1988 (4) SCC 551 ; Sarwan Singh & Ors. v. State
F of Punjab 1979 ( 1 ) SCR 383 = 1978 ( 4) sec 111; and
Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. & Anr. 2007
(4) SCR 1122 = 2007 (6) sec 528 - distinguished.
4.2. The facts and circumstances of the instant case
which have been proved by the prosecution in bringing
G home the guilt of the accused u/s 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
H the appellant, sentence of three years awarded by the
ALISTER ANTHONY PAREIRA v. STATE OF
155
MAHARASHTRA
High Court is too meagre and not adequate but since no
A
appeal has been preferred by the State, this Court refrain
from considering the matter for enhancement. The facts
and circumstances of the case do not justify benefit of
probation to the appellant for good conduct or for any
reduction of sentence. [para 79-80] (194-C-G]
8
4.3. In view of the large number of accidental deaths
due to speeding and drunk driving, it is high time that law
makers revisit the sentencing policy reflected in s. 304 A
IPC. [para 78] [193-H; 194-A-B]
Ghulam Din Buch .vs. State of J &K 1996 ( 3) SCR 1121
= 1996 (9) SCC 239; Ku/dip Singh & Ors. vs. State of Delhi
2003(12) SCC 528; Jai Prakash v.
State (Delhi
Administration) 1991 (1) SCR 202 = 1991 (2) SCC 32 and
c
Joti Parshad v. State of Haryana 1993 (2) Suppl. SCC 497;
D
Willie (William) Slaney v. State of Madhya Pradesh 1955
SCR 1140 =1956 AIR 116 Dalbir Singh v. State of U.P. 2004
(5) SCC 334; Shivaji Sahabrao Boliade and another v. State
of Maharashtra 1974 (1) SCR 489 = 1973 (2) SCC 793;
Dalbir Singh v. State of Haryana 2000 (3) SCR 1000 = 2000
E
(5) SCC 82, Shailesh Jasvantbhai and another v. State of
Gujarat and others 2006 (1) SCR 477 = 2006 (2) SCC 359
and Manish Ja/an v. State of Kamataka 2008 (8 ) SCC 225
- cited.
Case Law Reference:
F
1996 (3) SCR 1121
cited
para 16
2003(12) sec 528
cited
para 16
1991 (1) SCR 202
cited
para 21
G
1993 ( 2 ) Suppl. sec 497
cited
para 21
1955 SCR 1140
cited
para 21
2004 (5) sec 334
cited
para 21
H
156
SUPREME COURT REPORTS
[2012] 1 S.C.R.
A
2009 (6) SCR 755
relied on
para 21
and 49
1974 (1) SCR 489
cited
para 22
2000 (2) SCR 761
cited
para 22
B
2000 (3) SCR 1000
cited
para 23
2006 (1) SCR 477
cited
para 23
2008 (8) sec 225
cited
para 23
c
1881(3) All 776
referred to
para 35
2007 (7) SCR 1141
relied on
para 45
1962 SCR 489
relied on
para 54
D
2008 (10) SCR 1115
relied on
para 55
2005 Suppl. (1) SCR 562
referred to
para 75
1994 (1) SCR 37
distinguished para 76
1995 (6) Suppl. SCR 195
distinguished para 76
E
2003 (3) Suppl. SCR 618
distinguished para 76
2004 (3) Suppl. SCR 356
distinguished para 76
2005 (1) SCR 781
distinguished para 76
F
1988 (2) Suppl. SCR 571
distinguished para 77
1979 (1) SCR 383
distinguished para 77
2007 (4) SCR 1122
distinguished para 77
G
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1318-1320 of 2007.
From the Judgment & Order dated 06.09.2007 of the High
Court of Judicature at Bombay in Crl. Appeal Nos. 430, 566 &
H 475 of 2007.
ALISTER ANTHONY PAREIRA v. STATE OF
157
MAHARASHTRA
U.U. Lalit, Manjula Rao, Nitin Sangra, Satyajeet Saha, V.D.
A
Khanna for the Appellant.
Sanjay Kharde, Sachin Patil (for Asha Gopalan Nair) for
the Respondent.
The Judgment of the Court was delivered by
R.M. LODHA, J. 1. On the South-North Road at the East
side of Carter Road, Sandra (West), Mumbai in the early hours
of November 12, 2006 between 3.45 - 4.00 a.m., a car ran into
S
the pavement killing seven persons and causing injuries to eight
C
persons. The appellant - Alister Anthony Pareira - was at the
wheels. He has been convicted by the High Court for the
offences punishable under Sections 304 Part II, 338 and 337
of the Indian Penal Code, 1860 (IPC).
2. The prosecution case against the appellant is this: the
D
repair and construction work of the Carter Road, Sandra (West)
at the relevant time was being carried out by New India
Construction Company. The labourers were engaged by the
construction company for executing the works. The temporary
sheds (huts) were put up for the residence of labourers on the
E
pavement. In the night of November 11, 2006 and November
12, 2006, the labourers were asleep in front of their huts on the
pavement. Between 3.45 to 4.00 a.m., that night, the appellant
while driving the car (corolla) bearing Registration No. MH-01R-580 rashly and negligently with knowledge that people were
F
asleep on footpath rammed the car over the pavement; caused
death of seven persons and injuries to eight persons. At the
time of incident, the appellant was found to have consumed
alcohol. A liquor bottle was recovered from the appellant's car.
On his medical examination, he was found to have 0. 112% w/
G
v liquor (ethyl alcohol) in his blood. The appellant was fully
familiar with the area being the resident of Carter Road.
3. The contractor-Panchanadan Paramalai Harijan (PW2) - who had engaged the labourers and witnessed the incident
H
158
SUPREME COURT REPORTS
(2012] 1 S.C.R.
A reported the matter immediately to the Khar Police Station. His
statement (Ex. 13) was recorded and based on that a first
information report (No. 838) was registered under Section 304,
279, 336, 337, 338 and 427 IPC; Section 185 of the Motor
Vehicles Act, 1988 and Section 66 (1)(b) of Bombay Prohibition
B Act, 1949.
4. On completion of investigation, the charge sheet was
submitted against the appellant by the Investigating Officer in
the court of Magistrate having jurisdiction. The appellant was
C committed to the Court of Sessions and was tried by 2nd
Adhoc Additional Sessions Judge, Sewree, Mumbai.
D
E
F
5. The indictment of the appellant was on two charges. The
two charges read:-
"(i)
that on November 12, 2006 between 3.45 to 4.00
a.m. you have driven the car bearing No. MH-01R-580 rashly and negligently with knowledge that
people are sleeping on footpath and likely to cause
death of those persons slept over footpath and
thereby caused the death of seven persons who
were sleeping on footpath on Carter Road and
thereby committed an offence punishable under
Section 304 Part II IPC.
(ii)
on above date, time and place you have driven the
vehicle in rashly and negligent manner and thereby
caused grievous injury to seven persons who were
sleeping on footpath and thereby committed an
offence punishable under Section 338 IPC."
G
6. The prosecution, to prove the above charges against
the appellant, tendered oral as well as documentary evidence.
In all, 18 witnesses, namely, Dr. Nitin Vishnu Barve (PW-1),
Panchanadan Paramalai Harijan (PW-2), Ramchandra
Chakrawarti (PW-3), Pindi Ramu (PW-4), Sriniwas Raman
H Pindi (PW-5), Sm!. Mariamma Shingamana (PW-6), Sm!.
ALISTER ANTHONY PAREIRA v. STATE OF
159
MAHARASHTRA [R.M. LODHA, J.]
Prema Chingaram (PW-7), Jagan Singaram (PW-8), Sigamani
A
Shankar Pani (PW-9), Mallikarjun Bajappa Motermallappa
(PW-10), J.C. Cell Mendosa (PW-11 ), Praveen Salian Mohite
(PW-12), Limbaji Samadhan Ingle (PW-13), Dr. Sharad
Maniklal Ruia (PW-14), Rajendra Nilkanth Sawant (PW-15),
Basraj Sanjeev Mehetri (PW-16), Meenakshi.Anant Gondapatil
B
(PW-17) and Somnath Baburam Phulsunder (PW-18) were
examined. The complaint, spot panchnama along with sketch
map, C.A. Reports and other documents were also proved.
7. The statement of the appellant under Section 313 of the
Criminal Procedure Code, 1973 (for short, 'the Code') was
C
recorded. He admitted that he was driving the car no. MH-01R-580 at the relevant time and the accident did occur but his
explanation was that it happened on account of failure of engine
and mechanical defect in the car and there was no negligence
or rashness on his part.
D
8. The 2nd Adhoc Additional Sessions Judge, Sewree,
Mumbai, on April 13, 2007 convicted the appellant for the
offences punishable under Sections 304A and 337 IPC. The
court sentenced him to suffer simple imprisonment of six
E
months with fine of Rs. 5 lakhs for the offence under Section
304A IPC and in default further suffer simple imprisonment of
one month and simple imprisonment of 15 days for the offence
under Section 337 IPC. Both the sentences were ordered to
run concurrently.
F
9. On April 19, 2007, the Bombay High Court took suo
motu cognizance of the judgment and order dated April 13,
2007 passed by the 2nd Adhoc Additional Sessions Judge,
Sewree and issued notice to the State of Maharashtra, the
appellant and to the heirs of the deceased and also to the
G
injured persons.
10. The State of Maharashtra preferred criminal appeal
(No. 566 of 2007) under Section 378(3) of the Code challenging
the acquittal of the appellant under Sections 304 Part II and 338
H
160
SUPREME COURT REPORTS
[2012] 1 S.C.R.
A IPC. Another criminal appeal (No. 430 of 2007) was also
preferred by the State of Maharashtra seeking enhancement
of sentence awarded to the appellant for the offence under
Section 304A and Section 337 IPC by the trial court.
11. The appellant also preferred criminal appeal (No. 475/
8 2007) for setting aside the judgment and order dated April 13,
2007 passed by the trial court convicting him under Section
304A and Section 337 IPC and the sentence awarded to him
by the trial court.
C
12. All these matters were heard together by the High Court
and have been disposed of by the common judgment on
September 6, 2007. The High Court set aside the acquittal of
the appellant under Section 304 IPC and convicted him for the
offences under Section 304 Part II, Section 338 and Section
o 337 IPC. The High Court sentenced the appellant to undergo
rigorous imprisonment for three years for the offence punishable
under Section 304 Part II IPC with a fine of Rs. 5 lakhs. On
account of offence under Section 338 IPC, the appellant was
sentenced to undergo rigorous imprisonment for a term of one
E year and for the offence under Section 337 IPC rigorous
imprisonment for six months. The High Court noted that fine
amount as per the order of the trial court had already been
distributed to the families of victims.
13. It is from the above judgment of the High Court that the
F present appeals have been preferred by the appellant.
14. A great deal of argument in the hearing of the appeals
turned on the indictment of the appellant on the two charges,
namely, the offence punishable under Section 304 Part II IPC
c and the offence punishable under Section 338 IPC and his
conviction for the above offences and also under Section 337
IPC. Mr. U.U. Lalit, learned senior counsel for the appellant
argued that this was legally impermissible as the charges under
Section 304 Part II IPC and Section 338 IPC were mutually
H destructive and the two charges under these Sections cannot
ALISTER ANTHONY PAREIRA v. STATE OF
161
MAHARASHTRA [R.M. LODHA, J.]
co-exist. His submission was that the appellant was charged
A
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.
B
15. Mr. U.U. Lalit, learned senior counsel also argued that
no question was put to the appellant in his statement under
Section 313 of the Code about his drunken condition or that
he was under the influence of alcohol and, thus, had knowledge
that his act was likely to result in causing death. CA Report (Ex.
C
49) that blood and urine of the appellant had alcohol content
and the evidence of PW-1 that he found the appellant in
drunken condition and his blood sample was taken were also
not put to the appellant. These incriminating evidences, learned
senior counsel submitted, cannot form basis of conviction. The
D
conclusion arrived at by the Investigating Officers (PW-17 and
PW-18) regarding drunken condition of the appellant which was
put to the appellant in his statement under Section 313 of the
Code was of no legal use. Moreover, PW-17 and PW-18 have
not deposed before the court that the appellant was found in
E
drunken condition much less under the influence of liquor.
Learned senior counsel would thus submit that the sole basis
of the appellant's conviction under Section 304 Part-II IPC that
the appellant had knowledge that his reckless and negligent
driving in a drunken condition could result in serious
F
consequences of causing a fatal accident cannot be held to
have been established. In this regard, learned senior counsel
relied upon two decisions of this Court, namely, (i) Ghulam Din
Buch & Ors. v. State of J & K1 and (ii) Ku/dip Singh & Ors. v.
State of Delhi2.
G
16. Mr. U.U. Lalit vehemently contended that no charge
was framed that the appellant had consumed alcohol. Moreover,
1.
1995 (9) sec 239.
2.
2003 (12) sec s2a.
H
162
SUPREME COURT REPORTS
[2012] 1 S.C.R.
A he submited that no reliance could be placed on C.A. Report
(Ex. 49) as the evidence does not satisfactorily establish that
the samples were kept in safe custody until they reached the
CFSL. Moreover, no charge was framed by the court against
the appellant under Section 185 of the Motor Vehicles Act, 1988
B and Section 66(1)(b) of the Bombay Prohibition Act, 1949.
17. Learned senior counsel argued that appellant's
conviction under Section 304A, 338 and 337 IPC was not
legally sustainable for more than one reason. First, no charge
C under Section 304A IPC was framed against the appellant as
he was charged only under Section 304 Part 11 IPC and Section
338 IPC which are not the offences of the same category. In
the absence of charge under Section 304A IPC, the appellant
cannot be convicted for the said offence being not a minor
offence of Section 304 Part II IPC. The charge under Section
· D 338 IPC does not help the prosecution as by virtue of that
charge the appellant cannot be convicted under Section 304A
IPC being graver offence than Section 338 IPC. Secondly, the
accident had occurred not on account of rash or negligent act
of the appellant but on account of failure of the engine. He
E referred to the evidence of Rajendra Nilkanth Sawant (PW-15)
who deposed that he could not state if the accident took place
due to dislodging of right side wheel and dislodging of the
engine from the foundation. In the absence of any firm opinion
by an expert as regards the cause of accident, the possibility
F of the accident having occurred on account of mechanical
failure cannot be ruled out. Thirdly, in the absence of medical ·
certificate that the persons injured received grievous injuries,
charge under Section 338 IPC was not established.
G
18. Learned senior counsel lastly submitted that in case
the charges against appellant are held to be proved, having
regard to the facts, namely, the age of the appellant at the time
of the accident; the appellant being the only member to support
his family - mother and unmarried sister - having lost his father
H during the pendency of the present appeals; the fine and
ALISTER ANTHONY PAREIRA v. STATE OF
163.
MAHARASHTRA [R.M. LODHA, J.]
compensation of Rs. 8.5 lakhs having been paid and the
A
sentence of two months already undergone, the appellant may
be released on probation of good conduct and behavior or, in
the alternative, the sentence may be reduced to the period
already undergone by the appellant.
19. On the other hand, Mr. Sanjay Kharde, learned counsel
for the State of Maharashtra stoutly defended the judgment of
the High Court. He argued that the fact that labourers were
asleep on the footpath has gone unchallenged by the defence.
B
He would submit that the drunken condition of the appellant is
C
fully proved by the evidence of PW-1. Further, PW-1 has not at
all been cross-examined on this aspect. The recovery of liquor
bottle is proved by the evidence of spot panchas (PW-11 and
PW-16). They have not been cross examined in this regard.
PW-17 collected blood sample of the appellant from PW-1 and
then PW-18 forwarded the blood sample to the chemical
D
analyzer along with the forwarding letter. The appellant has not
challenged C.A. Report (Ex. 49) in the cross-examination of
PW-18.
20. Learned counsel for the State submitted that the
E
involvement of the appellant in the incident has been fully
established by the evidence of PW-13 who was an eye-witness
and working as a watchman at construction site. Moreover, the
appellant was apprehended immediately after the incident.
There is no denial by the appellant about occurrence of the
F
accident. The defence of the appellant was that the accident
happened due to engine and mechanical failure but the
appellant has failed to probablise his defence. He referred to
the evidence of PW-15 - motor vehicle inspector - to show that
the brake and the gear of the car were operative.
G
21. Learned counsel for the State referred to the evidence
of injured witnesses and also the evidence of PW-12 and PW14 who issued medical certificates and submitted that the
prosecution has established beyond reasonable doubt that the
knowledge was attributable to the accused as he was driving
H
1.64
SUPREME COURT REPORTS
[2012] 1 S.C.R
A the car in a drunken condition at a high speed. The accused
had the knowledge, as he was resident of the same area. that
the labourers sleep at the place of occurrence. Learned counsel
submitted that the evidence on record and the attendant
circumstances justify attributability of actual knowledge to the
B appellant and the High Court rightly held so. In this regard, the
learned counsel for the State placed reliance upon two
decisions of this Court in Jai Prakash v. State (Delhi
Administration)3 and Joti Parshad v. State of Haryana4 . He
disputed that there was any error in the framing of charge. He
c would contend that in any case an error or omission in framing
of charge or irregularity in the charge does not invalidate the
conviction of an accused. The omission about the drunken .
condition of the accused in the charge at best can be said to I
be an irregularity but that does not affect the conviction. In this
0
regard, he relied upon Section 464 of the Code and the
decisions of this Court in Willie (William) Slaney v. State of
Madhya Pradesh5, Dalbir Singh v. State of U. P. 6 and
Annareddy Sambasiva Reddy and others v. State of Andhra
Pradesh7.
E
22. Mr. Sanjay Kharde submitted that by not putting C.A.
Report (Ex. 49) to the appellant in his statement under Section
313 of the Code, no prejudice has been caused to him as he
admitted in his statement under Section 313 of the Code that
he was fully aware about the statement of the witnesses and
F
exhibits on record. In this regard, learned counsel relied upon
decision of this Court in Shivaji Sahabrao Bobade and
another v. State of Maharashtra8•
G 3.
1991 (2) sec 32.
4.
1993 SUPP (2) sec 497.
5.
AIR 1956 SC 116.
6.
2004 (5) sec 334.
1.
2009 c12i sec 546.
H s.
1973 (2) sec 793.
ALISTER ANTHONY PAREIRA v. STATE OF
165
MAHARASHTRA [R.M. LODHA, J.]
23. Lastly, learned counsel for the State submitted that the
A
circumstances pointed out by the learned senior counsel for the
appellant do not justify the benefit of probation to the appellant
or reduction of the sentence to the penod already undergone.
He submitted that seven innocent persons lost their lives and
eight persons got injured due to the act of the appellant and,
B
therefore, no sympathy was called for. He submitted that
sentence should be proportionate to the gravity of offence. He
relied upon the decisions of this Court in State of Kamataka
v. Krishnappa9, Da/bir Singh v. State of Haryana10, Shailesh
Jasvantbhai and another v. State of Gujarat and others11 and c
Manish Ja/an v. State of Kamatakc; 12•
24. 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 IPC
and the offence punishable under Section 338 IPC
is mutually destructive and legally impermissible?
D
In other words, whether it is permissible to try and
E
convict a person for the offence punishable under
Section 304 Part II IPC and the offence punishable
under Section 338 IPC for a sin.gle act of the same
transaction?
(ii)
Whether by not charging the appellant of 'drunken
F
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 G
9.
2000 (4) sec 75.
10. 2000 (5) sec 82.
11. 2ooe (2) sec 359.
12. 2008 (8) sec 225.
H
A
B
c
166
SUPREME COURT REPORTS
[2012] 1 S.C.R.
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 IPC and Section 337 IPC?
(iv)
Whether sentence awarded to the appellant by the
High Court for the offence punishable under Section
304 Part II IPC requires any modification?
re: question (i)
25. Section 304 IPC provides for punishment for culpable
homicide not amounting to murder. It reads as under:
D
"S.304.