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WINDS OF CHANGE : WITNESSING THE EVOLUTION OF LAW THROUGH

THE SUPREME COURT'S DECISION IN

ALISTER ANTHONY PAREIRA VS STATE OF MAHARASHTRA,2012.

Submitted By -

Akash Anurag,

Section - A,

Roll No - 1266.

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INTRODUCTION

It turns out that speeding recklessly in large trucks while placing one's own pleasure and personal
wealth ahead of the welfare of others is the greatest sin in the universe. 1 According to the Global
Status Report on Road Safety 2015 released by the World Health Organisation around 1.25
million people died due to road accidents in the year 2015 alone. 2 India is no stranger to this ever
increasing menace. Despite the Governments continued efforts to improve road safety across the
length and breadth of the country the total number of deaths caused in the nation due to accidents
related with road have been increasing with every subsequent year. While around 1.3 lakh people
met their untimely end in accidents related with road accidents in year 2013 3, the numbers rose to
1.4 lakh in the year 2015.4 Thus, a lot of lives have been lost in India on the roads due to road
accidents which could have easily been prevented if not for the senses of the person behind the
wheels being clouded by the effect of alcohol coupled with voluntary rash and negligent acts on
their part.

Indian Judiciary over the period of time has decided a lot of cases dealing with rash and
negligent driving and has convicted a lot of offenders basically under the provisions of Section
304A5 of the Indian Penal Code. The maximum sentence that could be pronounced under the

1 Between the Bridge and the River (2006), Craig Ferguson, ISBN 0-8118-5375-6.

2 Global Status Report on Road Safety (2015), World Health Organization. Available at -
http://www.who.int/violence_injury_prevention/road_safety_status/2015/en/

3 Global Status Report on Road Safety (2013), World Health Organization. Available at -
http://www.nhp.gov.in/road-traffic-accidents_pg.

4 Global Status Report on Road Safety (2015), World Health Organization. Available at -
http://www.who.int/violence_injury_prevention/road_safety_status/2015/TableA2.pdf.

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provisions of the above section was that of an imprisonment of two years 6 - alas something too
less for the loss of something as precious as life due to the rash and negligent act of someone
else. The offenders even after causing the death of someone else would easily take the advantage
of their young age and would at times successfully seek their release under the relevant
provisions of The Probation of Offenders Act, 1958. 7 This treatment of the High Courts could
well be termed as lenient towards the offenders who were responsible for causing deaths on road
due to their rash and negligent driving. In 1965, due to rash and negligent driving by an auto -
rickshaw driver on the roads of Delhi lead to the death of a child and serious injuries to the
passengers travelling inside the auto-rickshaw. The Supreme Court in it's 1973 Judgement
reduced the sentence already undergone by the auto-rickshaw driver 8and observed that -

"Harassment of criminal trial for more than 8 years and the expenses which the appellant must
have incurred could legitimately be taken into account which considering the question of
sentence to be imposed by this court at this point of time."9

The above judgement of the Honourable Supreme Court epitomises the leniency with which the
Indian Courts in the erstwhile period dealt with the people responsible for causing deaths due to
them driving in a rash and negligent manner.

With respect to the modern globalised India the vehicular population has increased and with
other social evils the tendency to drink and drive has also increased. Section 304 A of the Indian
Penal Code is applicable to cases where the intention to cause death is absent and that there does

5 Section 304 A, Indian Penal Code, 1860.

6 Supra Note.5.

7 Section 4,The Probation of Offenders Act, 1958.

8 Jagdish Chander vs. State of Delhi, 1973 AIR 2127..

9 Supra Note.8.

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not exist the knowledge that the act in all probability would lead to causing of death. 10 So this
leads to the origin of the question whether Section 304 A of the Indian Penal Code should
actually be applicable to cases where despite being heavily under the influence of alcohol the
offenders take to the wheels despite being well aware of the fact that a vast multitude of poor,
homeless masses who take to the pavements to sleep could be their potential victims.

However the judicial mindset too over the period of time has experienced changes with the
approach of the courts in dealing with cases related with death caused due to rash, negligent and
drunk driving. The year of 2007 can well be recognised as a breakthrough year in this respect
with the decision of the Supreme Court while hearing the appeal in the case of Manjappa vs.
State of Karnataka11. While deciding upon the appeal the Supreme Court breathed new air in the
Judicial Approach to such cases by observing that no person who had committed an offence of a
grave nature should be released under the provisions of the Probation of Offenders Act. 12
However despite the stand taken by the Supreme Court in the above case one of the important
problems which had still remain unattended was the incongruence between the cases of rash and
negligent driving leading to death and the comparatively lenient legal punishment pronounced
under Section 304 A of the India Penal Code, 1860. The Supreme Court then rightly observed in
while deciding the case of State of Punjab vs. Balwinder Singh13, where in its judgement the
Supreme Court held that "efflux of time did not in any way reduce the gravity of the offence
caused by rash and negligent driving14." Expressing disagreement and surprise at the decision of
the High Court of Punjab and Haryana in reducing the sentence of two years as pronounced

10 Supra Note. 5.

11 Manjappa vs. State of Karnataka, Appeal (Crl.) 766 of 2007.

12 Supra Note.11.

13 State of Punjab vs. Balwinder Singh, Criminal Appeal Nos. 47-48 of 2012.

14 Supra Note. 13.

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formerly by the trial court the Honourable Supreme Court held that "while considering the
quantum of sentence to be imposed for the offence of causing death or injury by rash and
negligent driving of automobiles, one of the prime considerations should be deterrence15".

These winds of change in the judicial climate reached its torrential strength with the decision of
the Supreme Court in the case of Alister Anthony Pareira vs. State of Maharashtra 16. In this case
a Supreme Court Bench consisting of Justice R.M. Lodha and and Justice J.S. Khehar carried out
a detailed examination of punishment for rash and negligent driving with special emphasis on
death on account of rash and negligent driving due to alcohol. The court strongly opined that the
time had come for a judicial revisit into the nature of Section 304 A of the Indian Penal Code.
Moreover they also held with respect to the facts of the case that such a case where the loss of
substantial human life was involved could be and should be tried under the provisions of Section
304 II of IPC on account of the knowledge of the possible death of innocent persons due to
driving recklessly under the influence of alcohol. The most important implication of this
judgement is the observation regarding deaths caused due to rash and negligent driving under the
influence of alcohol as an offence under the purview of Section 304 II of the Indian Penal Code.
This implies a punishment of 10 years to the offenders compared to that of the maximum
punishment of 2 years that could be inflicted under the provisions of Section 304 A of the Indian
Penal Code. The court in this respect rightly observed - "There is a presumption that a man
knows the natural and likely consequences of his acts. Moreover, an act does not become
involuntary act simply because its consequences were unforeseen. The cases of negligence or of
rashness or dangerous driving do not eliminate the act being voluntary17."

The Alister Pereira judgement can be an antidote to sober up not only those who dare to drive
under the influence of alcohol but also habitual rash and negligent drivers not to zip across the
busy roads attempting to dangerously slide past the traffic.

15 Supra Note.13.

16 Alister Anthony Pareira vs. State of Maharashtra, (2012) 2 SCC 648.

17 Supra Note No. 16.

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JUDICIAL APPROACH PRIOR TO ALISTER PEREIRA CASE.

The Judicial Approach adopted prior to the Alister Pareira Case 18was quiet different especially
with respect to the applicability of Section 304 A19, Section 304 II 20and Section 338 21of the
Indian Penal Code in cases of rash and negligent driving. The Indian Penal Code originally
contained no provision at all for causing death by negligence. Therefore, in 1870 with the aid of
the Indian Penal Code Amendment Act, 1870 Section 304 - A was inserted into the Indian Penal
Code. This Amendment did not lead to the creation of any separate class of offence but it
actually focussed on offences outside the scope of Section 299 22and 300 23of the Indian Penal
Code when neither intention nor knowledge to cause death is there. It is quiet clear from the
wording of Section 304 A 24itself that it is applicable in those cases only where the death is
caused due to the negligent and rash acts of the accused and that there must not be any criminal
intention. However the problem with this provision is that it was applied by Indian Courts even

18 Supra Note. 16.

19 Supra Note. 5.

20 Section 304 II, The Indian Penal Code, 1860.

21 Section 338, The Indian Penal Code, 1860.

22 Section 299, The Indian Penal Code, 1860.

23 Section 300, The Indian Penal Code, 1860.

24 Supra Note. 5.

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in such cases where the death was caused due to rash and negligent driving under the influence
of alcohol was committed on the part of the accused. Thou, the accused did not have any
criminal intention in such situations but then also the accused had the knowledge that his/her
driving rashly and negligently under the influence of alcohol was inherently dangerous and
would put the life's of other people under danger. So we see that though one of the basics of the
doctrines is the lack of knowledge but as already proved above in cases of rash and negligent
driving under the influence of alcohol the accused had to serve a maximum sentence of 2 years
and a fine for causing the death of someone with the knowledge of the same.

The basic reason why in the era of 1960's the courts often used Section 304 A of the Indian Penal
Code to pronounce punishment in cases of rash and negligent driving was due to the fact that at
that time the vehicular population was not as high as today and the no. cases of Drunk Driving
were negligible.

One of the first and the oldest cases post independence regarding the application of Section 304
A in case of rash and negligent driving is that of Jagdesh Chander vs. State of Delhi 25where the
Honourable Delhi High Court again acted too leniently in dealing with the matter of the death of
a young child and the causation of serious injuries to the passengers due to rash and negligent
driving on the part of the driver of the said auto - rickshaw. In this case the driver of the auto
rickshaw disregarding the traffic lights had in a rash and negligent manner had veered his auto
rickshaw to the right. This negligence lead to the death of a child standing on the corner of the
road and lead to serious injuries to the passengers travelling in the auto rickshaw. The High
Court prosecuted the above appellant under Section 304 A of the Indian Penal Code and
sentenced him to two years of imprisonment. The same was decided upon by the Supreme Court
too.

The same stand was taken by the Honourable Courts in many subsequent judgements. One of
such judgements which became quite controversial was the judgement of the Honourable
Madhya Pradesh High Court in the case of Murari vs. State of M.P 26. In its 2001 judgement the

25 Supra Note. 8.

26 Murari vs. State of M.P., 2001 CriLJ 2968.

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court sentenced the accused under Section 304 A of the Indian Penal Code to a simple
imprisonment of mere nine months and a fine of mere Rs. 2000. What is worthy to be noted in
the above case is the fact that the accused in the present case was a truck driver and he was fully
aware of the fact that there were passengers sitting on the slabs that his track had been loaded
with. Despite repeated protests from the passengers he drove rashly causing an accident and
leading to the death of a women and two children. So, we see here that the element of knowledge
that his action might lead to death was always there with the accused but due to a practise of
following precedents in out nation the court which should have prosecuted him for Culpable
Homicide under Section 304 II instead convicted him under Section 304 A . Thus, his trifling
sentence cannot be rightly said to be a deterrent for such an act.

In many cases despite being convicted under Section 304 A of the IPC the convicts were
successful in the reduction of their sentences on grounds such as young age , soul bread winner
of the family etc. as per the provisions of Section 4 27of the Probation of Offenders Act, 1958. So
even though they were convicted such conviction never stood to be a deterrent as the offenders
got released before the end of the sentence which they were supposed to serve. One of the prime
examples of such cases is the order of the release of the offender in the year 1973 by the
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Supreme Court in The Jagdish Chander Case mentioned above despite the accused having
committed an offence of grievous nature. Similar was the position taken by the Punjab and
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Haryana High Court in Ram Pal v. State of Punjab Case where despite the convict being
convicted for two years for causing death due to rash and negligent driving under Section 304 A
of the IPC was released after six months by the Punjab and Haryana High Court primarily on the
ground that he was a first time offender and that he had not misused the concession of bail that
had been allowed to him.

27 Section 4, The Probation of Offenders Act, 1958.

28 Supra Note. 8.

29 2006(1) R.C.R.(Criminal) 784.

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However such an approach of the courts came under serious criticism as the action of the courts
in releasing the prisoners itself reduced the importance and the value of a deterrent i.e.
Punishment insufficient in itself. The first signs of a change in the approach of the judiciary with
respect to the Application of Section 4 of The Probation of Offenders Act, 1958 were witnessed
in the case of Manjappa vs State of Karnataka 30where the court clearly laid out the principle that
if the offence was itself of a grave nature then no person could be released under the provisions
of The Probation of Offenders Act, 1958.

The approach was further applied by the Supreme Court in the case of State of Punjab vs.
Balwinder Singh31, a case that was decided upon by the Supreme Court just a week before Alister
Pareira Case. The Court had not upheld the order of appeal of the Punjab and Haryana High
Court as the offence for which the accused had been convicted under Section 304 A of the IPC
was one which qualified as an offence of a grave nature.

No substantial march of law can be seen in the terms of application of Section 304 II to cases of
death caused by rash and negligent driving under the influence of alcohol before the Judgement
in this case. In all the judgements before this case the Supreme Court as well as the High Courts
had convicted the accused under Section 304 A of IPC who were found guilty of causing death
due to rash and negligent driving whether or not being under the influence of alcohol. It was only
in the judgement of The Alister Anthony Pareira Case that the Supreme Court for the first time
considered and justified conviction under Section 304 II of IPC in order to establish a better
deterrent.

THE ALISTER PAREIRA JUDGEMENT.

The most important part of the ruling or the most important observation made by court while
deciding this case was that given the grave nature of the crime committed by the accused it is
possible to convict an accused under Section 304 II of the Indian Penal Code as well as Section
338 of the I.P.C. for a single act in the same transmission. The Supreme Court did not find both

30 Supra Note. 11.

31 Supra Note. 13.

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the Sections to be mutually destructive as Section 304 II deals with an act of causing death
without the intention to do so but with the knowledge that the act is dangerous enough in itself to
cause death while Section 338 of The Indian Penal Code deals with the cases of grievous hurt. So
as per the facts of the present case the accused could be tried under both the sections of the IPC
i.e. under 304 II for causing the death of 8 people due to rash and negligent driving while being
under the influence of alcohol (although he did not have the intention to cause the death the
accused had knowledge that his act of drunk driving in the night could lead to something
dangerous like what happened) and under Section 338 of the IPC for causing grievous hurt to the
other 7 people sleeping on the pavement.

The court rightly observed that -

A personal responsible for a reckless act that causes death about which he had knowledge as a
reasonable man can be held guilty on account of the knowledge being there for culpable
homicide not amounting to murder under Section 304 II. 32

The Supreme Court clealry outlined the principle relying upon the decision of the court in the

case of Prabhakaran vs. State of Kerala 33that wherever the rash and negligent act is preceded

with the knowledge that the act is dangerous enough to cause the death then the accused could

easily be charged as well as convicted under Section 304 II of the I.P.C. It is one of the first

judgements where the court has even talked of charging anyone with an offence under Section

304 II of IPC for rash and negligent driving. In the present case while no intention can be

construed from the side of the accused however his act of driving rash under the influence of

alcohol cannot be said to be free of the knowledge in his mind that in a country like India where

the poor take to the roads to sleep such an act has all the possibility to cause such damage as

death. However the court did not exceed the sentence of the accused under the provisions of

32 Supra Note .16.

33 Prabhakaran vs. State of Kerala, Air 2007 S.C 2376.

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Section 304 II although it disagreed with the High Court for convicting the accused for only 3

years despite him being responsible for the death of seven people as the same had been pleaded

for by the council for the state.

With reference to the facts of the case and the gravity of the offence the Supreme Court refused

any sort of modification and subsequent reduction in the sentence of imprisonment for the

accused for a period of three years only. The twin objective of the sentencing policy of the court

is deterrence and correction. So as per the Supreme Court in this case where the accused was

guilty of claiming seven lives while driving rashly under the influence of alcohol any

modification in the already insufficient punishment would lead to defeating the very purpose of

sentencing. The court very rightly observed that with the mounting number of deaths in case of

deaths related with road accidents it would not be prudent enough for the courts to grant relief

under the relevant sections of the Probation of Offenders Act as it would not serve as a proper

deterrent for the purpose and would only defeat the purposes of the Penal Provisions.

The last and the most important aspect that needs to be analysed in brief is whether the

prosecution was able to prove beyond reasonable doubt the commission of the crime for the

purpose of Section 304 II and 338 of the IPC. The Prosecution was able to deduce sufficient

evidence to prove the appellant's guilt beyond any reasonable doubt. It presented strong eye

witnesses in the form of the Chaukidaaar as well as the complainant who had seen the incident

with their eyes and that they had been rock solid in cross examination. One strong evidence

adduced from on the stop investigation in the form of the long break marks in curve show that

under the influence of the alcohol the appellant had been driving very fast and so when he lost

control over the car the car ran over the people sleeping on the pavement. Therefore the guilt of

the appellant was established beyond reasonable doubt.

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CONCLUSION

The Judgement of the Supreme Court as well as that of the Bombay High Court is a landmark
one as it is one of the very first times that a cash of rash and negligent driving is being treated as
culpable homicide not amounting to murder under the provisions of Section 304 II of the IPC.
The Supreme Court Bench of Justice Lodha and Khehar took a very active as well as a bold
stance in its observation that its high time that the legislators take a sneak back into the Penal
Character of Section 304 A as the provisions of the same was neither successfully acting as
deterrent towards reducing the number of casualties in accidents related with rash and negligible
driving nor was it prescribing sufficient punishment for the same. Importantly, this judgement
attributed knowledge of possible death of innocent persons if someone under the influence of
alcohol drove recklessly and ruled that such offences could well be categorized under Section
304-II, which attracted up to 10 years imprisonment as against 2 years under Section 304A.
However I am not fully satisfied with judgement of the Supreme Court in this case . The
Supreme Court made apt observations about the punishment being too less under the provisions
of Section 304 A of The Indian Penal Code. However while the Supreme Court did not reduce
the sentence that was pronounced by the Bombay High Court it also did not increase the
punishment that had been pronounced from three years to something more - something which
could have set an example and something which could have been a better deterrent. The same
was not done by the Supreme Court merely because the Council for the State did not plead for
the same. So I find it a bit difficult to understand the reason why the supreme court while it had
an opportunity did not raise the punishment.

The judgment of the court can serve as a breakthrough judgement as the courts in the future
while deciding up the matters of death caused due to rash and negligent driving can use the
elaborative reasoning and explanations of the court in this case to come up with better
judgements leading to further development of law in this respect.

So lets hope what repeated instructions from the government could not achieve - road safety will
now be achieved the decision in this case and the cases to follow so as to make the roads safer

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not only for those whom it is their home but also for people to whom these roads are the ways to
their homes.

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INDEX OF AUTHORITY

Supreme Court Cases

Alister Anthony Pareira vs. State of Maharashtra, (2012) 2 SCC 648.5

Jagdish Chander vs. State of Delhi, 1973 AIR 2127.......................................................................4

Manjappa vs. State of Karnataka, Appeal (Crl.) 766 of 2007..........................................................4

Prabhakaran vs. State of Kerala, Air 2007 S.C 2376.....................................................................10

State of Punjab vs. Balwinder Singh, Criminal Appeal Nos. 47-48 of 2012...................................5

Probation of Offenders Act, 1958

Section 4,The Probation of Offenders Act, 1958.............................................................................3

Punjab and Haryana High Court Cases

2006(1) R.C.R.(Criminal) 784.........................................................................................................8

Madhya Pradesh High Court Cases

Murari vs. State of M.P., 2001 CriLJ 2968......................................................................................7

The Indian Penal Code, 1860

Section 299, The Indian Penal Code, 1860......................................................................................6

Section 300, The Indian Penal Code, 1860......................................................................................6

Section 304 A, Indian Penal Code, 1860.........................................................................................3

Section 304 II, The Indian Penal Code, 1860..................................................................................6

Section 338, The Indian Penal Code, 1860......................................................................................6

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WHO Reports

Global Status Report on Road Safety (2013), World Health Organization.....................................3

Global Status Report on Road Safety (2015), World Health Organization.....................................3

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