knowledge of causing death

Supreme Court of India
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Author: .....J.
Bench: T.S. Thakur, Gyan Sudha Misra
 REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICITION
 CRIMINAL APPEAL NO.597 OF 2010
Sushil Ansal Appellant
 Versus
State Through CBI Respondent
(With Crl. Appeals No.598/2010, 599/2010, 600-602/2010, 604/2010, 605-
616/2010 and 617-627/2010)186. The Trial Court had framed charges against the accused persons by an order dated 9th April,
2001 by which Sushil and Gopal Ansal were charged with commission of offence punishable under
Section 304A, 337 and 338 read with Section 36 IPC. Against that order framing charges the
Association of Victims of Uphaar Tragedy (AVUT) filed Criminal Revision No.270 of 2001 before the
Delhi High Court to contend that a charge under Section 304 IPC also ought to have been framed
against the said two accused persons. The case of the association was that there was overwhelming
evidence on record to establish the charge. That revision eventually failed and was dismissed by the
High Court by its order dated 11th September, 2001 (Sushil Ansal v. State Through CBI etc. etc. 1995
(2002) DLT 623). Revision petitions filed by other accused persons against the order of framing
charges were also dismissed by the High Court by the very same order. Dealing with the contention
urged on behalf of the AVUT the High Court observed:
34. The plea of Association of Victims of Uphaar Tragedy to frame charges under
Section 304 IPC against accused Sh. Sushil Ansal and Sh. Gopal Ansal, in addition to
the charges already framed against them, cannot be sustained in as much as prima
facie a case of negligence only is made out against them. The allegations against them
gross negligence, wanton carelessness and callous indifference in regard to the
up-keep and maintenance of the cinema. Had rapid dispersal facilities been available
to the patrons in the balcony, no death or injury could have taken place and as such,
this Court is of the considered view that there are no good and sufficient grounds for
slapping a charge under Section 304 IPC against these two accused.
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187. What is significant is that AVUT did not bring up the matter to this Court against the above
order passed by the High Court. On the contrary, Sushil Ansal appears to have filed a special leave
petition in this Court challenging the dismissal of the revision petition by the High Court which was
subsequently dismissed as withdrawn by this Court by order dated 12th April, 2002. The result was
that the trial commenced against the Ansal brothers on the basis of the charges framed by the Trial
Court.
188. The AVUT during the course of the trial made another attempt to have the charge under
Section 304 IPC framed against the Ansal brothers by moving an application before the Trial Court
to that effect. The Trial Court, however, disposed of that application stating that if it found sufficient
evidence against the Ansal brothers justifying a charge under Section 304 IPC or any other person
for that matter, it would take action suo moto for framing such a charge. Final judgment of the Trial
Court was delivered on 20th November, 2007 in which it convicted Ansal brothers of the offence
under Section 304A of the IPC, which clearly meant that the Trial Court had not found any reason to
frame any additional charge against them under Section 304 IPC.
189. Aggrieved by the omission of the Trial Court to frame a charge under Section 304 IPC, AVUT
filed a revision petition before the High Court which too was dismissed by the High Court with the
observation that their earlier revision petition framing charges under Sections 304, 337 and 338
read with Section 36 having been dismissed by the High Court, the said order had become final,
especially when the revisionist AVUT did not carry the matter further to this Court. The High Court
also held that the appeal against the conviction of the Ansal brothers having been disposed of, there
was no question of framing any charge for a graver offence in the absence of any evidence
unequivocally establishing that such a charge was made out and yet had not been framed. The High
Court held that procedure for misjoinder of charges under Section 216 applied during the stage of
trial, whereas AVUT was asking for a remand of the matter for a retrial on the fresh charge under
Section 304 Part II, which was not permissible under the scheme of the Code. The High Court also
rejected the contention that Ansal brothers could be convicted for an offence graver than what they
were charged with.
190. In the appeal filed by AVUT against the order passed by the High Court in the above revision
petition, they have agitated the very same issue before us. Appearing for the Victims Association,
Mr. Tulsi argued that the acts of omission and commission of Ansal brothers by which the egress of
the patrons was obstructed warranted a conviction not merely for the offence punishable under
Section 304A IPC but also for the offence punishable under Section 304 Part II since according to
the learned counsel the said acts were committed with the knowledge that death was likely to result
thereby. Mr. Tulsi in particular contended that the act of installing an eight-seater box that entirely
blocked the right-side exit in the balcony was itself sufficient for the Court to order a retrial of the
Ansal brothers, since they knew by such an act they were likely to cause death of the patrons in the
event of a fire incident. On that premise, he contended that the matter should be remanded back to
the Trial Court for retrial for commission of the offence punishable under Section 304 Part II. In
support of the contention that the fact situation in the case at hand established a case under Section
304 Part II, Mr. Tulsi placed reliance on the decision of this Court in Alister Anthony Pereira v. State
of Maharashtra (2012) 2 SCC 648 where this Court was dealing with an inebriated driver, driving
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under the influence of alcohol causing the death of people on the footpath. He contended that this
Court had in that fact situation held that by driving recklessly under the influence of alcohol the
driver knew that he can thereby kill someone. Anyone causing death must be deemed to have had
the knowledge that his act of omission and commission was likely to result in the loss of human
lives.
191. Mr. Ram Jethmalani, learned counsel for Ansal brothers on the other hand placed reliance
upon the decision of this Court in Keshub Mahindra v. State of M.P. (1996) 6 SCC 129 and argued
that a case where a person in a drunken state of mind drives a vehicle recklessly is completely
distinguishable from the case at hand and that the fact situations are not comparable in the least. On
the contrary in the case of Keshub Mahindra (supra), this Court has clearly repelled the contention
that the charge under Section 304 Part II would be maintained against those handling the plant
from which the lethal MIC gas had leaked to cause what is known as the infamous Bhopal Gas
Tragedy in which thousands of human beings lost their lives. If this Court did not find a case under
Section 304 Part II made out in a case where the tragedy had left thousands dead, the question of
the present unfortunate incident being treated as one under Section 304 Part II did not arise,
contended Mr. Jethmalani.
192. In Alister Anthony Pereiras case (supra), the accused was driving in an inebriated condition
when he ran over a number of labourers sleeping on the pavement, killing seven of them. The Trial
Court convicted the accused under Sections 304A and 337 IPC but acquitted him under Section 304
Part II and 338 IPC. The Bombay High Court set aside the acquittal and convicted the accused for
offences under Sections 304 Part II, 337 and 338 IPC. This Court affirmed the said judgment of the
High Court and while doing so explained the distinction between the offence under Section 304A
and that punishable under Section 304 Part II IPC. This Court observed:
47. Each case obviously has to be decided on its own facts. In a case where
negligence or rashness is the cause of death and nothing more, Section 304A may be
attracted but where the rash or negligent act is preceded with the knowledge that
such act is likely to cause death, Section 304 Part II Indian Penal Code may be
attracted and if such a rash and negligent act is preceded by real intention on the part
of the wrong doer to cause death, offence may be punishable under
Section 302 Indian Penal Code.
193. This Court went on to hold that the accused in the above case could be said to have had the
knowledge that his act of reckless driving in an inebriated condition was likely to cause death. This
Court observed:
41. Rash or negligent driving on a public road with the knowledge of the dangerous
character and the likely effect of the act and resulting in death may fall in the category
of culpable homicide not amounting to murder. A person, doing an act of rash or
negligent driving, if aware of a risk that a particular consequence is likely to result
and that result occurs, may be held guilty not only of the act but also of the result. As
a matter of law - in view of the provisions of the Indian Penal Code - the cases which
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fall within last clause of Section 299 but not within clause 'fourthly' of
Section 300 may cover the cases of rash or negligent act done with the knowledge of
the likelihood of its dangerous consequences and may entail punishment under
Section 304 Part II Indian Penal Code. Section 304A Indian Penal Code takes out of
its ambit the cases of death of any person by doing any rash or negligent act
amounting to culpable homicide of either description. xx xx xx
78. We have also carefully considered the evidence let in by prosecution - the
substance of which has been referred to above
- and we find no justifiable ground to take a view different from that of the High
Court. We agree with the conclusions of the High Court and have no hesitation in
holding that the evidence and materials on record prove beyond reasonable doubt
that the Appellant can be attributed with knowledge that his act of driving the vehicle
at a high speed in the rash or negligent manner was dangerous enough and he knew
that one result would very likely be that people who were asleep on the pavement
may be hit, should the vehicle go out of control. (emphasis supplied)
194. In State through PS Lodhi Colony, New Delhi v. Sanjeev Nanda (2012) 8 SCC 450, six
bystanders were killed when the accused, driving recklessly under the influence of alcohol ran them
over. The accused was also shown to have gotten out of the vehicle after the incident, inspected the
gruesome damage and thereafter driven away. While the trial Court convicted the accused under
Section 304 Part II, IPC, the Delhi High Court altered the conviction to one under Section 304A on
the ground that knowledge of causing death was not made out. This Court allowed the appeal
against this decision and held the offence of culpable homicide not amounting to murder to have
been made out. The reasoning behind the Courts conclusion that the accused had the knowledge
that death was likely to be caused was based on the facts of the case and the presumption that was
drawn in Alister Anthony (supra) against drunken drivers in hit and run cases. K.S.P.
Radhakrishnan, J. speaking for this Court observed as follows:
The principle mentioned by this Court in Alister Anthony Pereira (supra) indicates
that the person must be presumed to have had the knowledge that, his act of driving
the vehicle without a licence in a high speed after consuming liquor beyond the
permissible limit, is likely or sufficient in the ordinary course of nature to cause death
of the pedestrians on the road. In our view, Alister Anthony Pareira (supra) judgment
calls for no reconsideration. Assuming that Shri Ram Jethmalani is right in
contending that while he was driving the vehicle in a drunken state, he had no
intention or knowledge that his action was likely to cause death of six human beings,
in our view, at least, immediately after having hit so many human beings and the
bodies scattered around, he had the knowledge that his action was likely to cause
death of so many human beings, lying on the road unattended. To say, still he had no
knowledge about his action is too childish which no reasonable man can accept as
worthy of consideration. So far as this case is concerned, it has been brought out in
evidence that the accused was in an inebriated state, after consuming excessive
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alcohol, he was driving the vehicle without licence, in a rash and negligent manner in
a high speed which resulted in the death of six persons. The accused had sufficient
knowledge that his action was likely to cause death and such an action would, in the
facts and circumstances of this case fall under Section 304(II) of the Indian Penal
Code and the trial court has rightly held so and the High Court has committed an
error in converting the offence to Section 304A of the Indian Penal Code.
195. What emerges from the two cases referred to above is that:
a. Each case must be decided on its own facts to determine whether such knowledge
did in fact precede the rash/negligent act.
b. What converts a case apparently falling under Section 304A into one under Section
304 Part II is the knowledge that the act is likely to cause death.
c. Where the act which causes death is the act of driving a vehicle in a rash and reckless manner and
in an inebriated state after consuming liquor, the accused may be attributed the knowledge that
such act was likely to cause death of others using the road.
196. The decision in Alister Anthony Pereira's case (supra) or that delivered in Sanjeev Nandas case
(supra) does not lay down any specific test for determining whether the accused had the knowledge
that his act was likely to cause death. The decisions simply accept the proposition that drunken
driving in an inebriated state, under the influence of alcohol would give rise to an inference that the
person so driving had the knowledge that his act was likely to cause death. The fact situation in the
case at hand is not comparable to a case of drunken driving in an inebriated state. The case at hand
is more akin on facts to Keshub Mahindras case (supra) where this Court was dealing with the
question whether a case under Section 304 part II was made out against the management of Union
Carbide India Ltd., whose negligence had resulted in highly toxic MIC gas escaping from the plant at
Bhopal. The trial Court in that case had framed a charge against the management of the company
for commission of an offence under Section 304 Part II, IPC, which was upheld by the High Court in
revision. This Court, however, set aside the order framing the charge under Section 304 Part II and
directed that charges be framed under Section 304A, IPC instead. This Court observed:
20The entire material which the prosecution relied upon before the Trail Court for
framing the charge and to which we have made a detailed reference earlier, in our
view, cannot support such a charge unless it indicates prima facie that on that fateful
night when the plant was run at Bhopal it was run by the concerned accused with the
knowledge that such running of the plant was likely to cause deaths of human beings.
It cannot be disputed that mere act of running a plant as per the permission granted
by the authorities would not be a criminal act. Even assuming that it was a defective
plant and it was dealing with a very toxic and hazardous substance like MIC the mere
act of storing such a material by the accused in Tank No. 610 could not even prima
facie suggest that the concerned accused thereby had knowledge that they were likely
to cause death of human beings. In fairness to the prosecution it was not suggested
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and could not be suggested that the accused had an intention to kill any human being
while operating the plant. Similarly on the aforesaid material placed on record it
could not be even prima facie suggested by the prosecution that any of the accused
had a knowledge that by operating the plant on that fateful night whereat such
dangerous and highly volatile substance like MIC was stored they had the knowledge
that by this very act itself they were likely to cause death of any human being.
Consequently in our view taking entire material as aforesaid on its face value and
assuming it to represent the correct factual position in connection with the operation
of the plant at Bhopal on that fateful night it could not be said that the said material
even prima facie called for framing of a charge against the concerned accused under
Section 304 Part II, IPC on the specious plea that the said act of the accused
amounted to culpable homicide only because the operation of the plant on that night
ultimately resulted in deaths of a number of human beings and cattle (emphasis
supplied)
197. At the same time, the Court held that there was enough evidence to prima facie establish that
the accused management had committed an offence under Section 304A and observed that the
evidence assembled by the prosecution suggested that structural and operational defects in the
working of the plant was the direct and proximate cause of death:
21 It cannot be disputed that because of the operation of the defective plant at
Bhopal on that fateful night a highly dangerous and volatile substance like MIC got
converted into poisonous gas which snuffed off the lives of thousands of human
beings and maimed other thousands and killed number of animals and that all
happened, as seen at least prima facie by the material led by the prosecution on
record, because of rash and negligent act on the part of the accused who were
in-charge of the plant at Bhopal. Even though, therefore, these accused cannot be
charged for offences under Section 304 Part II the material led against them by the
prosecution at least prima facie showed that the accused were guilty of rash or
negligent acts not amounting to culpable homicide and by that act caused death of
large number of persons In this connection we must observe that the material led
by the prosecution to which we have made a detailed reference earlier prima facie
shows that there were not only structural defects but even operational defects in the
working of the plant on that fateful night which resulted into this grim tragedy.
Consequently a prima facie case is made out for framing charges under
Section 304A against the concerned accused
198. It is noteworthy that an attempt was made by the CBI and State of Madhya Pradesh to have the
above order recalled and set aside by way of a curative petition which failed with the dismissal of the
petition by a five- Judge Bench of this Court (See C.B.I. and Ors. etc. v. Keshub Mahindra etc. (2011)
6 SCC 216).