{"id":120970,"date":"2007-11-12T00:00:00","date_gmt":"2007-11-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/naresh-giri-vs-state-of-m-p-on-12-november-2007"},"modified":"2016-01-25T08:41:23","modified_gmt":"2016-01-25T03:11:23","slug":"naresh-giri-vs-state-of-m-p-on-12-november-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/naresh-giri-vs-state-of-m-p-on-12-november-2007","title":{"rendered":"Naresh Giri vs State Of M.P on 12 November, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Naresh Giri vs State Of M.P on 12 November, 2007<\/div>\n
Author: . A Pasayat<\/div>\n
Bench: Dr. Arijit Pasayat, P. Sathasivam<\/div>\n
           CASE NO.:\nAppeal (crl.)  1530 of 2007\n\nPETITIONER:\nNaresh Giri\n\nRESPONDENT:\nState of M.P.\n\nDATE OF JUDGMENT: 12\/11\/2007\n\nBENCH:\nDr. ARIJIT PASAYAT & P. SATHASIVAM\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
CRIMINAL APPEAL NO.   1530             OF 2007
\n(Arising out of S.L.P (Crl.) No.4805 of 2006)<\/p>\n
Dr. ARIJIT PASAYAT, J.\n<\/p>\n
1.\tLeave granted.\n<\/p>\n
2.\tChallenge in this appeal is to the order passed by a
\nlearned Single Judge of the Madhya Pradesh High Court
\ndismissing the criminal revision petition filed by the appellant.\n<\/p>\n
3.\tBackground facts in a nutshell are as follows:
\n\tOn 29.8.2004 bus bearing no. MPO 10588 was going
\nfrom Ahrauli towards Kailaras.  While it was near a railway
\ncrossing, an accident took place.  A train  hit the bus at the
\nrailway crossing. In the accident the bus  which was being
\ndriven by the appellant was badly damaged and as a result of
\nthe accident several passengers got injured and two persons
\nnamely Bhagoli @ Bhagwati and Ankush died.  First
\ninformation report was lodged by Brijmohan Sharma,
\nConstable.  After completion of investigation charge sheet was
\nfiled.  Charges were framed in relation to the offences
\npunishable under Section 302 and alternatively under Section
\n304, 325 and 323 of the Indian Penal Code, 1860 (in short the
\n‘IPC’).\n<\/p>\n
\tQuestioning correctness of the charges framed, the
\nrevision petition was filed.  It was the stand of the appellant
\nthat Section 302 IPC has no application to the facts of the
\ncase.  The High Court did not accept the plea.  It found no
\nsubstance in the stand taken by the appellant that he had no
\nintention to kill the passengers.  High Court was of the view
\nthat on the basis of material available, charges were framed
\nand the intention of the appellant has been gathered when
\nthe evidence is adduced.\n<\/p>\n
4.\tLearned counsel for the appellant submitted that the
\naccident took place near the railway crossing which was un-
\nmanned.  The materials on record show that the engine of the
\ntrain hit rear portion of the bus. Ultimately it may have been
\nan error of judgment on the part of the appellant and the fact
\nthat the engine hit rear portion shows that there was no
\napparent negligence on the part of the appellant. Therefore,
\nSection 302 has no application and at the most it may be
\nSection 304-A IPC.\n<\/p>\n
5.\tIn response, learned counsel for the respondent
\nsubmitted that the fact that the passengers were asking the
\nappellant not to cross the railway line shows that there was
\nnegligence and appellant was acting in a rash and negligent
\nmanner without proper care and caution.\n<\/p>\n
6.\tSection 304-A IPC applies to cases where there is no
\nintention to cause death and no knowledge that the act done,
\nin all probabilities, will cause death.  This provision is directed
\nat offences outside the range of Sections 299 and 300 IPC.
\nSection 304-A applies only to such acts which are rash and
\nnegligent and are directly the cause of death of another
\nperson.  Negligence and rashness are essential elements under
\nSection 304-A.\n<\/p>\n
7.\tSection 304-A carves out a specific offence where death is
\ncaused by doing a rash or negligent act and that act does not
\namount to culpable homicide under Section 299 or murder
\nunder Section 300. If a person willfully drives a motor vehicle
\ninto the midst of a crowd and thereby causes death to some
\nperson, it will not be a case of mere rash and negligent driving
\nand the act will amount to culpable homicide.  Doing an act
\nwith the intent to kill a person or knowledge that doing an act
\nwas likely to cause a person’s death is culpable homicide.
\nWhen the intent or knowledge is the direct motivating force of
\nthe act, Section 304-A has to make room for the graver and
\nmore serious charge of culpable homicide.  The provision of
\nthis section is not limited to rash or negligent driving. Any
\nrash or negligent act whereby death of any person is caused
\nbecomes punishable.  Two elements either of which or both of
\nwhich may be proved to establish the guilt of an accused are
\nrashness\/negligence, a person may cause death by a rash or
\nnegligent act which may have nothing to do with driving at all.
\nNegligence and rashness to be punishable in terms of Section
\n304-A must be attributable to a state of mind wherein the
\ncriminality arises because of no error in judgment but of a
\ndeliberation in the mind risking the crime as well as the life of
\nthe person who may lose his life as a result of the crime.
\nSection 304-A discloses that criminality may be that apart
\nfrom any mens rea,  there may be no motive or intention still a
\nperson may venture or practice such rashness or negligence
\nwhich may cause the death of other. The death so caused is
\nnot the determining factor.\n<\/p>\n
8.\tWhat constitutes negligence has been analysed in
\nHalsbury’s Laws of England (4th Edition) Volume 34 paragraph
\n1 (para 3) as follows:\n<\/p>\n
\t“Negligence is a specific tort and in any
\ngiven circumstances is the failure to exercise
\nthat care which the circumstances demand.
\nWhat amounts to negligence depends on the
\nfacts of each particular case. It may consist in
\nomitting to do something which ought to be
\ndone or in doing something which ought to be
\ndone either in a different manner or not at all.
\nWhere there is no duty to exercise care,
\nnegligence in the popular sense has no legal
\nconsequence, where there is a duty to exercise
\ncare, reasonable care must be taken to avoid
\nacts or omissions which can be reasonably
\nforeseen to be likely to cause physical injury to
\npersons or property. The degree of care
\nrequired in the particular case depends on the
\nsurrounding circumstances, and may vary
\naccording to the amount of the risk to be
\nencountered and to the magnitude of the
\nprospective injury. The duty of care is owed
\nonly to those persons who are in the area of
\nforeseeable danger, the fact that the act of the
\ndefendant violated his duty of care to a third
\nperson does not enable the plaintiff who is also
\ninjured by the same act to claim unless he is
\nalso within the area of foreseeable danger. The
\nsame act or omission may accordingly in some
\ncircumstances involve liability as being
\nnegligent although in other circumstances it
\nwill not do so. The material considerations are
\nthe absence of care which is on the part of the
\ndefendant owed to the plaintiff in the
\ncircumstances of the case and damage
\nsuffered by the plaintiff, together with a
\ndemonstrable relation of cause and effect
\nbetween the two”.\n<\/p>\n
9.\tIn this context the following passage from Kenny’s
\nOutlines of Criminal Law, 19th Edition (1966) at page 38 may
\nbe usefully noted :\n<\/p>\n
“Yet a man may bring about an event
\nwithout having adverted to it at all, he may not
\nhave foreseen that his actions would have this
\nconsequence and it will come to him as a
\nsurprise. The event may be harmless or
\nharmful, if harmful, the question rises whether
\nthere is legal liability for it. In tort, (at common
\nlaw) this is decided by considering whether or
\nnot a reasonable man in the same
\ncircumstances would have realised the
\nprospect of harm and would have stopped or
\nchanged his course so as to avoid it. If a
\nreasonable man would not, then there is no
\nliability and the harm must lie where it falls.
\nBut if the reasonable man would have avoided
\nthe harm then there is liability and the
\nperpetrator of the harm is said to be guilty of
\nnegligence. The word ‘negligence’ denotes, and
\nshould be used only to denote, such
\nblameworthy inadvertence, and the man who
\nthrough his negligence has brought harm
\nupon another is under a legal obligation to
\nmake reparation for it to the victim of the
\ninjury who may sue him in tort for damages.
\nBut it should now be recognized that at
\ncommon law there is no criminal liability for
\nharm thus caused by inadvertence. This has
\nbeen laid down authoritatively for
\nmanslaughter again and again. There are only
\ntwo states of mind which constitute mens rea
\nand they are intention and recklessness. The
\ndifference between recklessness and negligence
\nis the difference between advertence and
\ninadvertence they are opposed and it is a
\nlogical fallacy to suggest that recklessness is a
\ndegree of negligence The common habit of
\nlawyers to qualify the word “negligence” with
\nsome moral epithet such as wicked’ `gross’ or
\n`culpable’ has been most unfortunate since it
\nhas inevitably led to great confusion of thought
\nand of principle. It is equally misleading to
\nspeak of criminal negligence since this is
\nmerely to use an expression in order to explain
\nitself.”\n<\/p>\n
10.\t“Negligence”, says the Restatement of the law of Torts
\npublished by the American Law Institute (1934) Vol. I. Section
\n28 “is conduct which falls below the standard established for
\nthe protection of others against unreasonable risk of harm”. It
\nis stated in Law of Torts by Fleming at page 124 (Australian
\nPublication 1957) that this standard of conduct is ordinarily
\nmeasured by what the reasonable man of ordinary prudence
\nwould do under the circumstances. In Director of Public
\nProsecutions v. Camplin (1978) 2 All ER 168 it was observed by
\nLord Diplock that “the reasonable man” was comparatively late
\narrival in the laws of provocation. As the law of negligence
\nemerged in the first half of the 19th century it became the
\nanthropomorphic embodiment of the standard of care required
\nby law. In order to objectify the law’s abstractions like “care”
\n“reasonableness” or “foreseeability” the man of ordinary
\nprudence was invented as a model of the standard of conduct
\nto which all men are required to conform.\n<\/p>\n
11.\tIn Syed Akbar v. State of Kamataka, (1980) 1 SCC 30, it
\nwas held that “where negligence is an essential ingredient of
\nthe offence, the negligence to be established by the
\nprosecution must be culpable or gross and not the negligence
\nmerely based upon an error of judgment. As pointed out by
\nLord Atkin in Andrews v. Director of Public Prosecutions (1937)
\n(2) All ER 552) simple lack of care such as will constitute civil
\nliability, is not enough; for liability under the criminal law a
\nvery high degree of negligence is required to be proved.
\nProbably, of all the epithets that can be applied ‘reckless’ most
\nnearly covers the case. ”\n<\/p>\n
12.\tAccording to the dictionary meaning `reckless’ means
\n`careless’, `regardless’ or heedless of the possible harmful
\nconsequences of one’s acts’. It presupposes that if thought was
\ngiven to the matter by the doer before the act was done, it
\nwould have been apparent to him that there was a real risk of
\nits having the relevant harmful consequences; but, granted
\nthis, recklessness covers a whole range of states of mind from
\nfailing to give any thought at all to whether or not there is any
\nrisk of those harmful consequences, to recognizing the
\nexistence of the risk and nevertheless deciding to ignore it. In
\nR. v. Briggs (1977) 1 All ER 475 it was observed that a man is
\nreckless in the sense required when he carries out a deliberate
\nact knowing that there is some risk of damage resulting from
\nthe act but nevertheless continues in the performance of that
\nact.\n<\/p>\n
13.\tIn R. v. Caldwell (1981) 1 All ER 961, it was observed
\nthat:-\n<\/p>\n
“Nevertheless, to decide whether someone
\nhas been `reckless’, whether harmful
\nconsequences of a particular kind will result
\nfrom his act, as distinguished from his actually
\nintending such harmful consequences to
\nfollow, does call for some consideration of how
\nthe mind of the ordinary prudent individual
\nwould have reacted to a similar situation. If
\nthere were nothing in the circumstances that
\nought to have drawn the attention of an
\nordinary prudent individual to the possibility
\nof that kind of harmful consequence, the
\naccused would not be described as `reckless’ in
\nthe natural meaning of that word for failing to
\naddress his mind to the possibility; nor, if the
\nrisk of the harmful consequences was so slight
\nthat the ordinary prudent individual on due
\nconsideration of the risk would not he deterred
\nfrom treating it as negligible, could the
\naccused be described as reckless in its
\nordinary sense, if, having considered the risk,
\nhe decided to ignore it. (In this connection the
\ngravity of the possible harmful consequences
\nwould be an important factor. To endanger life
\nmust be one of the most grave). So, to this
\nextent, even if one ascribes to ‘reckless’ only
\nthe restricted meaning adopted by the Court of
\nAppeal in Stephenson and Briggs, of foreseeing
\nthat a particular kind of harm might happen
\nand yet going on to take the risk of it, it
\ninvolves a test that would be described in part
\nas ‘objective’ in current legal jargon. Questions
\nof criminal liability are seldom solved by
\nsimply asking whether the test is subjective or
\nobjective.”\n<\/p>\n
14.\tThe decision of R. v Caldwell (Supra) has been cited with
\napproval in R v. Lawrence (1981) 1 All ER 974 and it was
\nobserved that:\n<\/p>\n
“— Recklessness on the part of the doer
\nof an act does presuppose that there is
\nsomething in the circumstances that would
\nhave drawn the attention of an ordinary
\nprudent individual to the possibility that his
\nact was capable of causing the kind of serious
\nharmful consequences that the section which
\ncreates the offence was intended to prevent,
\nand that the risk of those harmful
\nconsequences occurring was not so slight that
\nan ordinary prudent individual would feel
\njustified in treating them as negligible. It is
\nonly when this is so that the doer of the act is
\nacting `recklessly’ if, before doing the act, he
\neither fails to give any thought to the
\npossibility of there being any such risk or,
\nhaving recognized that there was such risk, he
\nnevertheless goes on to do it”.\n<\/p>\n
14.\tNormally, as rightly observed by the High Court charges
\ncan be altered at any stage subsequent to the framing of
\ncharges. But the case at hand is one where prima facie Section
\n302 IPC has no application.\n<\/p>\n
15.\tAccordingly, the appeal is allowed.  The charges stand
\naltered to Section 304-A IPC along with Sections 279 and 337
\nIPC.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Naresh Giri vs State Of M.P on 12 November, 2007 Author: . A Pasayat Bench: Dr. Arijit Pasayat, P. Sathasivam CASE NO.: Appeal (crl.) 1530 of 2007 PETITIONER: Naresh Giri RESPONDENT: State of M.P. DATE OF JUDGMENT: 12\/11\/2007 BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM JUDGMENT: J U D G M […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-120970","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNaresh Giri vs State Of M.P on 12 November, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/naresh-giri-vs-state-of-m-p-on-12-november-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Naresh Giri vs State Of M.P on 12 November, 2007 - 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