Casual application of Section 304A for deaths caused in road accidents is not justified
“The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.”
Virsa Singh vs. State of Punjab, AIR 1958 SC 465, Vivian Bose, J.
Those were the observations of the learned judge in the above cited case which are extracted and presented for the sake of understanding the essential ingredients of the offence of hit and run cases or simply hit and stay cases, it makes no difference to the gravity of offence whether the accused is present at scene of offence after the hit or runs away. It appears that police casually apply Section 304A on persons accused of road accidents causing death and the courts let off the accused with meager punishment of less than two years sometimes even six months. It is astonishing to note that people are let off with such meager punishment for death which is lesser punishment than for causing grievous hurt for which the punishment could extend up to Seven years under S.325 of IPC.
I have been a good walker for a long time in my life and do not possess a two wheeler or four wheeler even today and hence I know what changes have taken place in the attitude of vehicle drivers in the past 40 years in Hyderabad. If you are not aware simply go for a walk on road then you will know that the vehicle drivers would not stop or nor control the vehicle, take the vehicle out of the direction of the pedestrian so as to avoid hitting. I had not seen this kind of attitude in vehicle drivers even 20 years back. But these days they just expect that you jump or get out of their way like a scared cat or dog and if you are walking on the way their vehicle is leading you are doing it at your risk. This is reckless, criminal attitude and they do it because they feel pedestrians do not care them or their vehicle as much as they expect them to be caring….and they convey the message by doing so that “if you don’t care, you have to pay for it”. They feel pedestrians are deliberately coming on their way though they could have waited till their vehicle is left. That feeling is so rampant in the vehicle drivers that you will notice that even if you have crossed 75 percent of the road by the time their vehicle is approaching and there is possibility that they could easily go off from the space created behind you they try to sound horn to express “I am coming just wait let me go” and then instead of going away from your behind, which they could have easily done if they had gone straight in the direction their vehicle was presently moving, they turn a little bit right to cross you from your front instead of crossing from your back. And more often you notice that these kinds of men are also using cellphones while doing so.
This attitude of vehicle drivers makes me feel that it is a form of encouragement for such tendencies if police and courts give meager punishment of less than two years for road-hit accidents. Section 304A is too casually made so as to serve the convenience of law enforcing agencies to let off even the drivers who drove their vehicles rashly with criminal intent. The section does not bring in its ambit the intention of the vehicle driver though he may not have planned for the murder because we all know that nobody plans for the murder of a stranger on a road. But that alone should not be a cause to not make a deeper study of the persons driving the vehicle that caused death due to accident which I have mentioned above where we notice day in and out as pedestrians that they are treating us as cats, dogs, cows and buffalows rather than as human beings. It is too simplistic to say, given this situation, that the cause of accident is rash and negligent driving and there cannot be anything beyond to read into the minds of people causing accidents.
It is humiliating on one side for a pedestrian to hurry oneself out of fear that the vehicle driver may hit him which becomes a cause for sharing fun with people travelling along with them in or on the vehicle and smacks of criminal intent of the driver on the other hand. Different intentions can be read from the way vehicle drivers drive the vehicle like:
- Intention to put the vehicle to race to go from the front side of a pedestrian crossing the road even when there is enough space created behind by the pedestrian by the time the vehicle reaches him.
- Intention to convey a criminal threat that if you don’t care for my vehicle I will hit you, rascal. (sorry to use that word, but that is the way many vehicles drivers feel about pedestrians which I often read while walking on roads which they express by deliberately driving the vehicle on to the body of the road crossing pedestrian to scare him out of anger caused due to not holding back waiting till Maharaja goes away from his front).
- Intention to scare the pedestrians and share fun with friends, girl friends sitting inside four-wheeler or on the bike. When we scare someone, we get laughter. Don’t we?
- Intention to have fun like Amitabh Bachchan and Dharmendra in Film Sholay in the song Ye Dosti Hum Nahi Chodenge.
- Intention to take law into their own hands to teach a lesson to public – it is your job to take care of your body by holding back, not my job to protect it by slowing down the vehicle…all this roguery because public has not given importance to their vehicle and stayed back till it goes off crossing the standing pedestrians. Show of criminal protest on pedestrians by the vehicle drivers.
- Intention to enjoy showing off the power and capacity of the mega powered engines of their vehicles by riding fast and show their riding skill, courage, might and caliber to their friends (co-travelling with them on or in the vehicle) and viewers, especially the opposite s*x. What is the use of owning a vehicle that can pick up speed at 100 kmph in no time if you have to travel at 40 kmph because of public walking on streets? That breeds great levels of intolerance towards walking public on roads.
- Intention to treat human beings like cats and dogs that jump and run out of their way because their upbringing is not healthy and hence they do not treat the pedestrians as equals by virtue of the fact that they don’t own a vehicle which can be summed up as Intention to humiliate.
And many more. When we can read so many intentions of vehicle drivers as pedestrians, why can’t the courts, the police and the parliament? It is astonishing to note that the parliament, the law enforcing agencies cannot read anything about the anatomy of psyche leading to rash and negligent driving, and simply end the matter as if to convey that rash and negligent driving may happen to anyone, that is not a serious offence. Probably they do not know the seriousness of this offence, because they have left walking on roads long back because of owning vehicles. If their parents were wealthy they would not have walked on roads even in their youth. That is why they do not know the seriousness of this offence.
I had written an article in this forum… https://www.lawyersclubindia.com/forum/Pedestrian-rights-in-indian-cities-117144.asp#.VcM0-VKzn6g… on 23rd February this year on the same topic and within two months or so my friend’s wife was killed in a road accident. They have crossed 75 percent of the road and they was ample space behind them for the speeding vehicle to pass off, but the driver came and hit his wife and she died. The eyewitness my friend tells me, the vehicle was being run at the speed of 80 kmph. Two young men were riding a pulsar bike and they were students.
Now let us come to the legal issues involved taking this accident as example.
The question is, why cannot Section 300 be applied in this case? One of the parts of Section 300 says:
Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused,
Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
(Comments : The difference between Second and Third incidents is that it is not necessary for the accused person to know that the bodily injury intended to be inflicted is likely to cause death in the Third incident … in other words, it is enough a person intends to cause bodily injury and if that leads to cause death in the ordinary course of events, the person is culpable for murder even if he did not know, as in the Second incident, that it is likely to cause death. And so when any bodily injury leads to death it is immaterial whether the person causing bodily injury intended to also cause death by causing such bodily injury or not, it is enough if such bodily injury leads to death. The corollary of this is that the prosecution need not prove that the person inflicting bodily injury also intended to cause death).
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Learned Judge Vivian Bose J. says in the above cited judgment :
The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.”
In my friend’s case and so also in similar cases the most likely defence of the accused person would be claiming innocence on the ground that “I have not intended to kill”. That is why instead of applying Section 300 the police apply Section 304A. That is why the above view of learned judge is cited to say that a person riding a vehicle at 80 kmph must and ought to know that he will endanger the lives of people walking on roads if he is driving vehicle at such uncontrollable speed. If a question is put to him in Examination in chief, “You know that if you drive vehicle at 80 kmph on such a busy road it would cause bodily injury to people if you hit?”. The answer could be either yes or no. If the answer is yes, then “intention” to cause bodily injury is proved if the answer is no, then he shall be punished for such ignorance. Because only a person of unsound mind could suffer from such ignorance. Giving a vehicle to him is like placing the gun loaded in the hands of an insane person. The court cannot in such case let him off unless he seeks the plea of general exception under Section 84 and proves that he is of unsound mind.
Like in Dowry death, why cannot the law presume that there is intention to cause bodily injury if a person is riding a speeding vehicle and causes death due to road accident? Why it is left for the victim to prove intentions of vehicle drivers when thousands of people are being killed on roads by vehicle drivers? There should be a statutory presumption that by virtue of owning a vehicle which may endanger lives of people on roads if recklessly driven a person must be knowing the consequences of rash driving and that is sufficient to presume intention to cause bodily injury. If they do not know the consequences of rash driving then let them prove their case under Section 84 claiming they are of unsound mind that is why they did not know the consequences. The onus must be on the rash or negligent driver to prove that there are reasonable circumstances beyond his control to hit the person on road and causing his death, it is not for the public dying on roads to prove their intentions to cause bodily injuries or death which the Law miserably fails to read.
The very fact that someone holds a license to drive shows that he is aware that rash and negligent driving would endanger lives of people on road. How can he say that I did not intend to cause bodily injury when he hits a person on road? We are not sitting here to supply lollipops to people who treat their vehicles as play toys or as weapons to teach lessons to people. The very fact that one holds a driving license shows that he is equipped with reasonable foresight that if he indulges in rash driving, he will endanger lives of people and that is enough for law to presume that there is intention to cause bodily injury when he commits a road accident, and that such bodily injury may also lead to death if the person hit is a weak or old person, and it is for the accused person to prove that there are reasonable circumstances beyond his control to hit the person. If he can’t he must be convicted under Section 300. If he has no license, then ignorance of law is no excuse. Then also it attracts Section 300. Application of Section 304A for vehicle drivers causing death by road accidents is oversimplification of a reckless & heinous offence. It may be for some other purpose but certainly not for people who by virtue of owning a vehicle and driving it on roads must possess license and by virtue of possessing license must be equipped with knowledge that rash and negligent driving would endanger lives of people on roads. And possession of such knowledge must safely raise a statutory presumption that he intends to cause bodily injury when he indulges in rash and negligent driving. And if law presumes such intention, it falls under Section 300 not under Section 304A.
