Alister Anthony Pareira Vs State Of Maharashtra On 12 January 2012

Bench:
R.M. Lodha, Jagdish Singh Khehar

Appellant:
Alister Anthony Pareira

Respondent:
State of Maharashtra

Issues

1. Is it mutually damaging and technically impermissible to indict on the two charges, namely the offence punishable under Section 304 Part II IPC and the offence punishable under Section 338 IPC? In other words, can a person be tried and convicted for both an offence punishable under Section 304 Part II IPC and an offence punishable under Section 338 IPC for a single act committed during the same transaction?
2. Whether the appellant's trial and conviction were harmed by not charging him with a "drunken state" and failing to provide him with all incriminating evidence allowed in by the prosecution, especially evidence relating to the appellant's drunken condition, at the time of his review under Section 313 of the Code?
3. Does the prosecution's evidence prove beyond a reasonable doubt that the appellant committed the offences under Sections 304 Part II, 338 IPC, and 337 IPC?
4. Does the High Court's sentence for the offence punishable under Section 304 Part II of the IPC need to be modified in some way?

Facts

• In the early hours of November 12, 2006, between 3.45 and 4.00 a.m., a car crashed into the pavement on the South-North Road at the East side of Carter Road, Bandra (West), Mumbai, killing seven people and injuring eight others. Alister Anthony Pareira, the appellant, was behind the wheel.
• The High Court found him guilty of the offences specified in Sections 304 Part II, 338, and 337 of the Indian Penal Code, 1860. (IPC).
• New India Construction Company was responsible for the repair and construction of Carter Road in Bandra (West) at the time. The construction firm hired labourers to complete the project. On the pavement, temporary sheds (huts) were erected for the use of labourers.
• The labourers were sleeping in front of their huts on the pavement on the 11th and 12th of November, 2006. The defendant, while driving a car (corolla) rashly and negligently and aware that people were sleeping on the sidewalk, rammed the car into the ground, killing seven people and injuring eight others.
• The contractor who had hired the labourers and witnessed the incident, Panchanadan Paramalai Harijan (PW-2), immediately reported the incident to the Khar Police Station. His statement was registered, and a first information report was created based on it. The Investigating Officer filed a charge sheet against the appellant in the court of Magistrate having jurisdiction after the investigation was completed.
• On April 13, 2007, the appellant was found guilty of violating Sections 304A and 337 of the Indian Penal Code by the 2nd Adhoc Additional Sessions Judge in Sewree, Mumbai. For the offence under Section 304A IPC, the court sentenced him to simple imprisonment for six months with a fine of Rs. 5 lakhs, and in default, he was sentenced to simple imprisonment for one month and simple imprisonment for 15 days for the offence under Section 337 IPC.
• The appellant's acquittal under Section 304 IPC was overturned, and he was found guilty under Section 304 Part II, Section 338, and Section 337 IPC. The appellant has sentenced to three years in prison and a fine of Rs. 5 lakhs by the High Court for the offence punishable under Section 304 Part II IPC.
• The appellant was sentenced to one year of rigorous imprisonment for an offence under Section 338 IPC and six months of rigorous imprisonment for an offence under Section 337 IPC. The High Court noted that the fine sum had already been allocated to the victims' families in accordance with the trial court's order.
• The appellant's current appeals are focused on the above-mentioned High Court judgment.

Appellants Contentions

• The prosecution of the appellant on the two counts, namely the crime punishable under Section 304 Part II IPC and the offence punishable under Section 338 IPC, and his conviction for the aforementioned offences as well as under Section 337 IPC, drew a lot of attention during the hearing of the appeals.
• Mr U.U. Lalit, learned senior counsel for the appellant, argued that this was legally impermissible because the charges under Sections 304 Part II IPC and 338 IPC were mutually destructive and could not coexist.
• He argued that the appellant was charged with the above offences for committing a single act, i.e., reckless or incompetent for injuring eight people and, at the same time, committed with knowledge for killing seven people, which is irreconcilable and, moreover, has caused grave discrimination to the appellant, resulting in a miscarriage of justice.
• Mr U.U. Lalit learned senior counsel, also argued that in his complaint under Section 313 of the Code, the appellant was not asked about his intoxicated condition or that he was under the influence of alcohol, and therefore had knowledge that his conduct was likely to result in death.
• The Investigating Officers' (PW-17 and PW-18) finding of the appellant's intoxicated condition, which was presented to the appellant in his statement under Section 313 of the Code, was of no legal value.
• As a result, learned senior counsel will argue that the sole basis for the appellant's prosecution under Section 304 Part-II IPC, that the appellant knew his careless and irresponsible driving while inebriated may result in serious consequences such as causing a fatal accident, cannot be held to have been created.
• In this regard, learned senior counsel cited two Supreme Court decisions: (i) Ghulam Din Buch & Ors. v. State of J & K1 and (ii) Kuldip Singh & Ors. v. State of Delhi2.
• Finally, learned senior counsel argued that if the charges against the appellant are found to be proven, taking into account the facts, such as the appellant's age at the time of the accident; the appellant is the only member of his family to support his mother and an unmarried sister; the appellant had lost his father during the pendency of the current appeals, the fine and compensation of Rs. 8.5 lakhs

Respondents Contentions

• Mr Sanjay Kharde, learned counsel for Maharashtra, vehemently defended the High Court's decision. The fact that labourers were sleeping on the footpath, he said, had gone unchallenged by the defence. He would argue that PW-1's testimony completely establishes the appellant's inebriated state. In addition, PW-1 has not been cross-examined at this stage.
• The proof of spots (PW-11 and PW-16) proves the recovery of the liquor bottle. In this respect, they have not been cross-examined. PW-17 took the appellant's blood sample from PW-1, and PW-18 forwarded the blood sample, along with the forwarding letter, to the chemical analyzer.
• The State's learned counsel argued that the appellant's role in the incident was fully funded by the testimony of PW-13, an eyewitness who worked as a construction site watchman. In addition, the appellant was apprehended almost immediately following the incident. The appellant makes no denials about the accident's occurrence.
• The appellant's defence was that the accident was caused by engine and mechanical failure, but the appellant failed to prove his case. He cited the testimony of PW-15, a motor vehicle inspector, to prove that the car's brakes and gears were in working order.
• Mr Sanjay Kharde argued that by not including the C.A. Report (Ex. 49) in the appellant's statement under Section 313 of the Code, no prejudice was caused to him, as he admitted in his statement under Section 313 of the Code. Learned counsel cited this Court's decision in Shivaji Sahabrao Bobade and others v. the State of Maharashtra8 in this regard.
• He argued that because the appellant's actions resulted in the deaths of seven innocent people and the injuries of eight others, no sympathy was needed. He argued that the punishment should be proportionate to the seriousness of the crime. State of Karnataka v. Krishnappa9, Dalbir Singh v. the State of Haryana10, Shailesh Jasvantbhai and others v. State of Gujarat and others11, and Manish Jalan v. the State of Karnataka12 were all judgments of this Court.

Judgement

● ISSUE 1 - There is no inconsistency if a person who has committed an act so rashly or negligently endangering human life or the personal protection of others and causing grievous harm to another person is prosecuted for the offence under Section 338 IPC concurrently with the offence under Section 304 Part II. In light of the above, we believe there is no legal impediment to an accused being prosecuted under Section 304 Part II IPC, as well as Sections 337 and 338 IPC. In the case of a single reckless or irresponsible act committed with the knowledge of the possibility of its harmful effects, the two charges under Section 304 Part II IPC and Section 338 IPC will legally coexist.

● ISSUE 2 - When looking at the complaint framed against the appellant under Section 304 Part II IPC, it is clear that the ingredients of Section 304 Part II IPC are implicit in that charge. The omission of the words "in intoxicated state" from the indictment isn't particularly significant, and in any case, the appellant was fully aware of the prosecution testimony, which included the appellant's drunken condition at the time of the incident. The appellant was well aware of the prosecution facts relating to his reckless and careless driving while inebriated, as shown by the above questions in his investigation under Section 313 of the Code. In this case, the accusation made on behalf of the victim deserves to be dismissed. While denying this argument, we will point out that the accused's admission or confession in his declaration under Section 313 of the Code, insofar as it supports, links to, or helps the prosecution's case as proven on the record, can be considered by the court in reaching its final decision. It would be even more so when the accused's explanations in the form of answers provided under Section 313 of the Code appear to be false, and no cross-examination of key prosecution witnesses was performed on this line.

● ISSUE 3 - The facts and materials on record show beyond a reasonable doubt that the appellant knew his act of driving the vehicle at a high speed in a reckless or irresponsible manner was dangerous enough, and that he knew that if the vehicle went out of control, people who were sleeping on the pavement would most likely be struck. A man is presumed to be aware of the natural and probable consequences of his behaviour. Furthermore, just because the results of an action is unexpected does not make it involuntary. The presence of incompetence, rashness, or reckless driving does not negate the act's voluntariness. The prosecution has successfully identified the essential elements of Section 304 Part II IPC against the appellant in this case. The accused was convicted of the crime under Section 337 IPC but cleared of the charge under Section 338 IPC by the trial court. Two of the wounded people had injuries to their right front temporal-parietal area, according to the High Court. and a deep scar that is bleeding The High Court ruled that these were not minor injuries and were not protected by Section 320 IPC's grievous harm provision. The SC upholds this. The appellant has been charged under Section 338 of the Indian Penal Code. In terms of the charge under Section 337 IPC, the prosecution evidence clearly shows that PW-5, PW-7, PW-9, and PW-10 sustained different injuries; they were simply injured. The appellant's conviction for the offence punishable under Section 337 IPC was also justified by the trial court and the High Court.

● ISSUE 4 - The facts and circumstances of the case, as shown by the prosecution in proving the accused's guilt under Section 304 Part II IPC, clearly demonstrate a despicable aggravated offence that requires a sentence proportionate to the crime. The accused's actions resulted in the loss of seven precious human lives. The sentence of three years imposed by the High Court for an offence like this, which has been proven against the appellant, is insufficient, but since the State has not filed an appeal, we will not consider the matter for enhancement. True, the appellant paid compensation of Rs. 8,50,000/-, but no sum of money could ever compensate the victims' families for their endless suffering. In reality, the High Court was very considerate and lenient in handing down a three-year sentence to the appellant for an offence under Section 304 Part II IPC in which seven people were killed. We are convinced that the facts and circumstances of the case do not warrant the appellant receiving probation or a penalty reduction for good behaviour. As a result, the appeals are rejected. Bail bonds for the appellant are revoked. He must immediately surrender in order to serve the remainder of his term.

Relevant paragraphs

● The scheme of Sections 279, 304A, 336, 337, and 338 leaves no question that these offences are punishable because of the intrinsic danger of the actions mentioned therein, regardless of experience or intent to achieve the consequence, and regardless of the outcome. These sections make actions that are likely to cause death or harm to human life punishable. In a case of a single rash or reckless act, the question is whether an accused's indictment under Section 304 Part II and Section 338 IPC will coexist.

● Thus, it is possible. Two charges do not seem to be mutually destructive to the Judges. If the act is performed with knowledge of the potentially dangerous consequences and death results, the penalty is not just for the act but also the subsequent murder, and a case may fall under Section 299 or Section 300 depending on the mental condition of the accused, i.e., whether the act was done with one kind of knowledge or the other or with the intention. Knowledge refers to a person's knowledge of the effects of his act of omission or commission, as well as his mental condition.

● Someone may be aware of the potential implications without intending to do so. Criminal responsibility is defined by considering what a prudent person would have known. Culpable homicide not amounting to murder can include rash or reckless driving on a public road with knowledge of the dangerous character and probable impact of the act, resulting in death. An individual who engages in reckless or careless driving while conscious of the possibility of a specific outcome and that outcome occurs can be held liable not only for the act but also for the outcome.

● As a matter of law, cases falling within the last clause of Section 299 but not within clause 'fourthly' of Section 300 which cover cases of reckless or irresponsible acts committed with the knowledge of the possibility of dangerous consequences, and may be punishable under Section 304 Part II of the IPC. The death of any person as a result of any reckless or careless act amounting to culpable homicide of any description is not covered by Section 304A IPC.

● The prosecution presented evidence that the appellant was seen driving a car at high speed from the Khar Danda side, ramming over the footpath and crushing the labourers sleeping there. The mechanical expert's testimony that he checked the vehicle and found no mechanical defects were also presented to him. During their investigation, the police discovered that the appellant's reckless and careless driving while under the influence of alcohol resulted in the deaths of seven people and the injuries of eight others. He was also asked about the finding reached after the investigation was completed.

● Photographs, mechanical inspections of the vehicle, confiscated objects, liquor bottle, and other materials were also brought to the appellant's attention. Given the above, it is difficult to argue that the defendant was not made fully conscious of the prosecution's testimony that he had driven the car rashly or negligently when inebriated. He had complete freedom to say whatever he wanted about the prosecution's evidence.

● The High Court concluded that (1) the accused was under the influence of liquor at the time of driving the car; (2) he drove the car in a drunken condition at a very high speed; and (3) he failed to control the vehicle and the vehicle could not be stopped until it ran out of gas. The accused was unable to focus on driving because he was under the influence of alcohol, and the car was driven with loud noise and a tape recorder playing at a high volume, according to the High Court. The High Court ruled that the accused had a road that was more than 22 feet wide and that there was no reason for a driver to turn to the left and travel more than 55 feet, climb over the footpath, and run over people sleeping on the footpath. The Mumbai High Court took judicial note of the fact that people sleep on the streets in Mumbai.

● Since the accused lived in the neighbourhood where the incident occurred, he was also aware that people slept there. The High Court noted that the accused confessed to the accident and that his justification was that it happened due to mechanical failure and a fault that formed in the car, but considered his explanation implausible and unreasonable. The evidence of high and reckless speed was also evident from the brake marks at the scene, according to the High Court. He was unable to stop the speeding car promptly. In light of the above conclusions, the High Court decided that the accused could be said to have had specific knowledge of the incident. As a result, the High Court concluded that the accused had intelligence, and in any case, such knowledge would be due to him, that his acts were dangerous or wanton enough to cause injury or even death to people.

● Sentencing is a crucial role in the criminal justice system. One of the primary goals of criminal law is to impose a punishment that is reasonable, sufficient, just, and proportionate to the nature and seriousness of the crime and how it is committed. There is no one-size-fits-all method for sentencing an accused based on evidence of a crime. The courts have established such principles: the sentencing policy's twin objectives are deterrence and correction. What punishment will best serve the interests of justice depends on the facts and circumstances of each case, and the court must consider the seriousness of the crime, the crime's intent, the essence of the offence, and all other relevant factors.