Over Speed & High Speed Are Relative Terms, Driving At High Speed By Itself Doesn't Mean Accused Was Rash Or Negligent: Kerala High Court

The Kerala High Court upheld the conviction imposed upon an accused under Section 304 Part II of the IPC for causing the death of a motor bike rider by driving his car on the wrong side of the road after consuming alcohol beyond the permissible limit.Section 304 defines culpable homicide not amounting to murder. A person is convicted under Section 304 Part II of the IPC when he does an act with the 'knowledge' that such an act is likely to cause death.Justice C S Sudha observed that the accused was not speeding his car but he drove the car after consuming alcohol beyond the permissible limit. It observed that the accused was unable to manage or control the car and drove on the wrong side of the car with the presumption of knowledge that if he hit pedestrians or people travelling in vehicles, death would be caused. “Merely because the vehicle is being driven at a high speed does not show that the driver was rash or negligent by itself. “High speed” or “over speed” as it is often referred to, is a relative term. It is for the prosecution to bring on record materials to establish as to what is meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. In the absence of any material on record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur".”As per the prosecution's allegation, the deceased was riding a motorbike with his wife and son as pillion passengers when the car driven by the accused who was under the influence of alcohol came from the opposite direction on the wrong side of the road and hit the motorbike. The deceased was killed instantly and his wife and son sustained injuries. The accused was convicted for the offence of culpable homicide not amounting to murder punishable under Section 304 Part II IPC. He was sentenced to rigorous imprisonment for three years and to a fine of rupees twenty-five thousand rupees. Aggrieved by the compensation and sentence, the wife and son of the deceased have preferred an appeal and an appeal was also filed by the accused challenging the conviction. The counsel for the accused argued that an offence under Section 304 Part II of IPC was not made out, and at most though not admittedly, it would only constitute an offence punishable under Section 304A of IPC by relying upon State of Karnataka v. Satish (1998).Section 299 defines culpable homicide and Section 304 is culpable homicide not amounting to murder. Section 304A of the IPC is attracted when death is caused due to rash or negligent act not amounting to culpable homicide. On analysing the provisions, the Court stated that when an act was done with the intent or knowledge that it would result in death, such an act would not come within the purview of Section 304A of the IPC and would come within the ambit of culpable homicide. Referring to various precedents, the Court stated thus, “Where rash or negligent act is preceded with the knowledge that it is likely to cause death, the offence punishable under Section 304 Part II IPC would be attracted. In a case where negligence or rashness is the cause of death and nothing more, Section 304A IPC would be attracted. However, where the rash or negligent act is preceded with the knowledge that such act is likely to cause death, Section 304 Part II IPC may be attracted and if such a rash and negligent act is preceded by real intention on the part of the wrongdoer to cause death, offence may be punishable under Section 302 IPC.”The Court was thus considering whether the accused drove with the knowledge that his act was likely to cause death to attract the punishment under Section 304 Part II IPC for culpable homicide not amounting to murder. Relying upon Alister Anthony Pareira, the Court stated that the accused had the presumption of knowledge that his act of driving the car on the wrong side of the road after consuming alcohol beyond the permissible limit was likely to or in the ordinary course of events, sufficient to cause the death of pedestrians or persons travelling in vehicles.On analysing the evidence, the Court stated that the car had no mechanical defects. It also found that the accused was driving the car after consuming a considerable amount of alcohol. It said, “The accused drove the vehicle through the wrong side of the road with the full knowledge that by his act, death could be caused.”As such, the Court upheld his conviction under Section 304 Part II of the IPC. “That being the position, it can only be held that the accused was driving the vehicle in a rash manner sufficient to attribute on him knowledge of the consequences which would bring the act within the scope of...

Over Speed & High Speed Are Relative Terms, Driving At High Speed By Itself Doesn't Mean Accused Was Rash Or Negligent: Kerala High Court

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