Case Comment


The likelihood of an accident and the impairment of driving abilities due to alcohol consumption is well-known. While drinking, one’s chances of being involved in an accident that results in serious bodily harm or death increase dramatically.

Drunk driving almost always results in catastrophic collisions. Assuming even a low blood alcohol concentration, drivers are twice as likely to be involved in an accident as those who are sober.[1] As a result, several nations have spent considerable time and effort on responses to drunk driving, such as increased awareness and education campaigns and stricter penalties for offenders.[2]

Sections 337 and Section 338 of the IPC,1860 were observed to have been applied to cases of drunk driving resulting in an accident in the past. In compliance with these sections, maximum sentences of imprisonment of six months and two years, respectively, are authorized.

In Alister Anthony Pareira v. State of Maharashtra[3], the Supreme Court ruled that if an accident is alleged to have been caused by intoxication, the investigating agency must file a case under section 304, Indian Penal Code, 1860. In section 304, subsection II, the punishment for homicide not#amounting to murder is ten years of rigorous imprisonment.

Drunk driving is now penalized under section 304, part II, as well as sections 337 and 338, which handle negligence related injuries. In its 2012 Global Status Report on Road Safety, the World Health Organization identified speeding and intoxicated driving as two of the most significant contributors to traffic accidents. According to the National Crime Records Bureau (NCRB), the number of road-related deaths in India exceeds 135,000 per year. Likewise, the NCRB Report made the same observation.

Earlier, in the cases of drunken driving were decided in line with sections 337 and 338 of the IPC. The maximum prison terms under these clauses are quite light at 6 months and 2 years, respectively. Nonetheless, in the case of Alister Anthony Pareira v. State of Maharashtra, the supreme court held that if a case is reported due ‘Drunken Driving’ the investigation agency shall register the case in the section 304 of the IPC along with sections 337 and 338, which deal with injury caused by negligence.

Section 304A, Indian Penal Code – Causing death by negligence. -Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.[4]

The penalty for negligent activities that are likely to result in death but that are committed without the intent to do so is covered in this section. The maximum sentence given under this clause is 10 years in jail.

Section 337, Indian Penal Code – Causing hurt by act endangering life or personal safety of others. Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both. [5]

This section of IPC deals with the punishment for causing hurt by an act that endangers the life/safety of others.. For the contested act, negligence or recklessness must be proven. The punishment is either six months in prison or a Rs 500 fine. Section 338 is more stringent and addresses the punishment for causing grievous bodily harm through negligence. The maximum penalty under this provision is two years in prison or a Rs 1,000 fine. In certain instances, the burden of proof may shift from the prosecution to the defendant, despite the fact that the prosecution typically bears it. The concept of res ipsa loquitur, which states that an event or act should speak for itself, is used for this purpose.




On November 12, 2006 between 3.45am to 4.00am, November 12, 2006, seven people were died and eight were injured when a vehicle crashed into a walkway on Carter Road, Bandra (W), Mumbai. Appellant Alistor Anthony Pareria was spotted driving a vehicle with car bearing number ‘MH-01-R-580’ as pedestrians slept nearby. When the appellant drove car over pavement, 7 people were killed and 8 were injured.

Under following sections, FIR was reported-

  • Sections 304[6], 279[7], 336[8], 337[9], 338[10] and 427[11] of the IPC
  • Section 185 of the Motor Vehicles Act, 1988[12]
  • Section 66(1)(b) of the Bombay Prohibition Act, 1949[13]

After the investigation was done, a charge sheet was submitted under section 304 and 338 of the IPC. 18 witnesses were interrogated for the same purpose. The appellant acknowledged that he had driven the vehicle, but he argued that the engine malfunction and other mechanical issues were to blame for the collision. He denied negligence in his part.


The trial court found the appellant guilty of violating sections 304A and 337 of the IPC. For the violation of section 304A of the Indian Penal Code, he was sentenced to six months in prison and a fine of Rs 5,00,000, and for the violation of section 337 of the Indian Penal Code, he received a simple 15-day term. Both punishments were to be carried out simultaneously.

The criminal appeal was filed by the state of Maharashtra challenging the appellant’s acquittal under the sections 304 and 338. The state of Maharashtra filed a second criminal appeal, requesting that the trial court’s penalty for the offences under sections 304A and 337 be increased. Criminal appeal to dismiss the judgement and decision of the trial court dated April 13, 2007 convicting him under sections 304A and 337 of the Indian Penal Code. In addition, the defendant filed a criminal appeal to overturn his conviction under Indian Penal Code sections 304A and 337, which was handed down by the trial court on April 13, 2007.

The Bombay High Court heard all the appeals and made its judgement on September 6, 2007. The High court overturned the decision of lower court to acquit the appellant under section 304 and found him guilty of the offences charged in the section 304 part II and section 337. The appellant was found guilty of the crime punishable under section 304 part II and sentenced to three years in jail with hard labour and a fine of Rs. 5 lakhs. The appellant was given a one-year sentence of simple imprisonment for the violation of section 338.

For the violation of 337 of the IPC a simple imprisonment of six month was imposed on him. After being dissatisfied with the Bombay High Court’s ruling, the appellant opted to take his case to the Supreme Court instead.




  1. Whether the Charges under Sections 304 Part II and 338 of the IPC can Co-exist in a Single Case of Rash or Negligent Act?

Under section 304 part II of the Indian Penel Code, the accused’s knowledge of possibility of his act resulting in death is significant. In numerous instances, attributed reasonable knowledge as a precondition to convict an accused. In contrast, section 337 and 338 of the IPC make negligent act punishable, without considering the intention and knowledge of the accused. The inherent risk posed by these actions warrants criminal penalties. An act of criminal rashness was defined as one that involves risk and is committed with the awareness that it may cause injury but without the purpose to cause hurt or the knowledge that injury is likely to result from the conduct.


Criminal rashness and criminal negligence were defined in Empress of India v. Idu Beg[14] It defined criminal rashness as engaging in a risky behaviour with the awareness that it could result in injury but without the intention to cause hurt or knowledge that the act probably can cause injury. Assuming the risk of executing such an act with recklessness or disregard to the consequences is unlawful. Regarding the accused’s accusation under sections 304 part II and 338, the court determined that the counts might coexist in a single instance of reckless or negligent conduct.



  1. Did the prosecution’s failure to charge the appellant with being in a “drunken condition” harm the appellant?

The phrase ‘drunk condition’ was not included on the defendant’s charge sheet. The appellant claimed that this omission in the prosecution’s case significantly prejudiced him. The court reviewed section 464(i) of the Code of Criminal Procedure, 1973, which states that an order of a court shall not be dismissed only due to a mistake, omission, or irregularity in the charge, unless it results in injustice.

In the case of Anna Reddy Sambasiva Reddy v. State of Andhra Pradesh, the court ruled that a fair trial is a precondition of the Indian criminal justice system and that each case will be decided based on its own merits. No defined formulas may be utilized. The important question in this case was whether the lack of a specific accusation disadvantaged the defendant.


The essential elements of the IPC section 304 part II are clear in the charge against the accused. The statement recorded by the witnesses were clearly recorded by the prosecution and it illustrated that the appellant was completely aware about his reckless and negligent driving in and intoxicated state. The court determined that the trial court has followed the requirements of section 313 of the Code of Criminal Procedure, 1973[15] fairly or at least substantially. Therefore, it was determined that the prosecution’s omission did not prejudice the appellant, and the appellant’s trial and conviction were valid. Therefore, it was determined that the prosecution’s omission did not harm the appellant, and the appellant’s trial and conviction were valid.


  1. Was it proven beyond a reasonable doubt that the appellant possessed the knowledge necessary to comply with Section 304 Part II, IPC?

The court after the entire prosecution evidence, it was noted that

  1. The accused was intoxicated at the time,
  2. He drove car extremely fast,
  3. He lost to control the car and the car ploughed over the sleeping individuals on the pavement.


The spot ‘Panchama’ revealed 70 feet of brake marks at a sharp bend in the road. It’s clear from this that the appellant was travelling at high speeds when he lost control of his car. The automobile drove up onto the sidewalk and ran over the sleeping people. According to the court, street sleeping is a common occurrence in Mumbai. [16]


In light of the circumstances, the court ruled that the defendant could be presumed to have personal knowledge of the crime. Without a shadow of a doubt, the appellant knew that his action (driving the car at high speed in a hasty or negligent way) was dangerous, as evidenced by the facts and materials in the record. In this regard, it is assumed that a man understands the inherent and probable results of his actions.


  1. Whether the Punishment Awarded by the High Court needed to be Modified?

The‘appellant’s counsel argued that the court should consider the following factors in making its decision:

  • the appellant has already served a two-month sentence and paid Rs. 8,50,000/- as a fine and compensation;
  • the appellant is further willing to pay reasonable amount as compensation/fine as may be awarded by this Court;
  • the appellant was about 20 years old at the time of the occurrence of the offence; and
  • the appellant lost his father

The court cited the case Dalbir Singh v. State of Haryana[17],  in which it ruled against leniency for drivers convicted of hazardous and irresponsible driving, ostensibly because it believed that such sanctions would serve as an effective deterrence.’

In State of Madhya Pradesh v. Saleem[18], the court ruled that the public’s trust in the judicial system would be harmed if citizens were to develop a bias against imposing a sufficient sentence.


When determining the appropriate sentence in this case, the court took into account the fact that the defendant’s actions resulted in the deaths of seven people. Thus, he was successful in proving the guilt of the accused under section 304 part II of the IPC. The Supreme Court stated that a sentence of three years in jail is insufficient under these facts. The Court declined to reduce the sentence to because of the seriousness of the offence; hence, the punishment handed down by the Bombay High Court was upheld by the Supreme Court as well.






The court determined that the facts and circumstances of the case did not support the appellant receiving probation for good behaviour or any other sentence reduction. The appeals were so denied. Bail bonds for the appellant were cancelled. He was instructed to surrender right away in order to serve the remaining term that the High Court imposed in its judgment and order from September 6, 2007.




  1. What classifies Grievous Injury?

In this case, the court had to deal with numerous intricacies and legal issues. By acquitting the accused under section 338[19] of the Indian Penal Code, the trial court failed to comprehend the harm caused by the accused’s negligence.

Section 338 imposes a punishment for causing grievous bodily harm by endangering the life or safety of another individual. The accused’s reckless driving resulted in the injuries of seven innocent bystanders.

According to the trial court, this did not constitute grave injury. This interpretation results in grave wrongdoing against the victims. In the case of Jassa Singh v. State of Haryana[20], it was determined that section 338 of the Indian Penal Code (IPC) applies to offenses that result in the reasonable fear of death or grievous bodily harm. The High Court correctly reversed the verdict of the lower court, acknowledged the severity of the injuries, and found the defendant guilty under section 338 as well.


Attributed Knowledge

The Supreme Court ruled that an accused must have had imputed knowledge in order to be convicted under section 304 part II of the IPC in Hanuman v. State of Haryana[21]. One of the most hotly contested issues in situations like this is whether or not the accused possesses the necessary information, reasonable knowledge, and to what extent that knowledge may be attributed to the act in question. An individual cannot claim ignorance of the evident results and knowledge of his actions and will be held responsible for those results. The defendant here was unable to disprove the jury’s assumption that he had prior knowledge. Because he lived nearby, he knew that construction workers had been sleeping on the sidewalk where the tragedy took place. Regardless, he drove his car at an unsafely high pace, causing him to lose control of it.


The court in Jai Prakash v. State Delhi Administration[22] concluded that the accused was aware of the danger he posed because he was armed with a knife and could have easily caused a life-threatening wound. Considering the evidence of discovered counterfeit stamps in Joti Parshad v. State of Haryana[23], the court decided that the appellant knew or should have known that the stamps he was selling were fake. The appellant was found guilty.


Given the foregoing, the researcher concludes that the trial court erred in acquitting the accused of the accusation under section 304 part II. This judgement was reversed by the High Court, which reasoned that such flagrant disregard for the safety of others was bound to lead to catastrophic consequences.


  1. Can both Sections 304 and 338 of the Indian Penal Code, 1860 exist simultaneously?

The core argument for the appellant was that sections 304 part II and 338 of the IPC are in conflict with one another and cannot stand as written. Drunken Driving charges are typically filed under IPC sections 337 and 338, which do not necessitate any specific level of understanding on the part of the accused but rather merely a basic careless act. In this specific case, however, the accused was charged under subsection (part II) of Section 304. The issue here is whether or not a single act can result in charges under both statutes. Can the same conduct be committed knowingly and unknowingly by the same person? In this case, the court agreed with the plaintiffs and concluded that Sections 338 and 304 can coexist. This viewpoint is shared by the researcher. The essence of the court’s finding was that if a fatal accident results from the accused’s intoxicated driving, he can be punished under section 304 part II of IPC and also held accountable for the grossly negligent act of drunken driving.

The court must consider the broader social context of each case it hears. This is especially true in the case of road accidents, which have recently become a pressing social issue. That’s why it’s imperative that cases of carelessness behind the wheel be dealt with severely. The reckless motorist cannot claim ignorance of the possibility of an accident or of the deaths of others as a result of his actions. Because driving under the influence of alcohol is such an egregious example of carelessness, the accused should be prosecuted under the most stringent legal provision available, in this case, section 304 part II of the IPC.


  1. Does simple Irregularity in the Charge Sheet completely Invalidate Court Proceedings?

The court has a responsibility under Section 313 of the Code of Criminal Procedure (CrPC), 1973 to explain to the accused each significant circumstance that appears in the evidence, precisely, distinctly, and independently. If it is proven that the accused was prejudiced as a result, failing to do so is a significant irregularity that taints the trial.

Nevertheless, the Code of Criminal Procedure’s rules are intended to advance justice’s objectives rather than to thwart them via the use of technicalities. Therefore, a court order cannot be ruled illegal based only on an error or omission in the charge sheet, according to § 464 of the Criminal Procedure Code.


The court stated in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra[24] that an omission in the charge sheet does not automatically invalidate the proceedings and that the accused must prove the harm allegedly caused by the defect. Therefore, it is the accused’s responsibility to prove that the omission hurt his case. The Supreme Court noted in Jai Dev v. State of Punjab[25] that the ultimate litmus test for determining whether or not the accused has been fairly examined under section 342 would be to inquire whether, taking into account all the questions put to him, he was given the opportunity to make his submissions in regard to the prosecution’s case against him.


The court held in William Slaney v. State of Madhya Pradesh[26] that framing charges under a different legislative provision is unlawful and invalidates the trial, but that a simple omission is a correctable irregularity and does not invalidate the proceedings unless prejudice was proven to have been caused to the accused.


In Gurbachan Singh v. State of Punjab[27], it was decided that when determining whether there was prejudice present, courts should focus on the substance rather than the technicalities. They should also consider whether the accused received a fair trial, was informed of the charges against him, had the key facts sought to be established against him explained to him, and had a reasonable opportunity to defend himself. In the current case, the accused was given a full opportunity to offer his own defence and was made aware of all the prosecution’s evidence that was presented to him regarding his intoxicated state. The court was correct to rule that the failure to charge him with being in a “drunken condition” was just an irregularity, and the procedures and decision are nonetheless legitimate.


In this case, the court considered who bears the burden of proof and whether carelessness was sufficiently proven. The burden of proof for negligence is often on the prosecution, but in some circumstances courts employ the res ipsa loquitur rule to transfer the burden on the accused. In Pushpabai Parshottam Udeshi v. Ranjit Ginning and Pressing Co. P. Ltd.[28], the Supreme Court acknowledged this rule by ruling that the rule of res ipsa loquitur should be applied in exceptional circumstances where the plaintiff can prove an accident occurred but cannot establish the defendant’s negligence. Res ipsa loquitur refers to the idea that an action (in this case, the accident) speaks for itself or has a self-contained narrative.

Additionally, Thakur Singh v. State of Punjab[29] upheld this rule. The principle of res ipsa loquitur demands acknowledgment and must be given appropriate credit in situations of such blatant carelessness.





While discussing the case’s legal concerns, the Supreme Court cited numerous precedents and offered numerous astute judgments. The researcher concludes that while the trial court’s decision had certain problems, the High Court and Supreme Court were able to fix those problems and issue a sound decision. When determining the appropriate level of punishment, the court must take into account both the rights of the accused and the rights of the victim.

[1]A. Arnedt, W. Wilde, M. Munt, and M. Maclean, “Simulated driving performance following prolonged wakefulness and alcohol consumption: separate and combined contributions to impairment,” Journal of Sleep Research, vol. 9, no. 3, pp. 233–241, 2000.

[2] M. D. Keall, W. J. Frith, and T. L. Patterson, “The influence of alcohol, age and number of passengers on the night-time risk of driver fatal injury in New Zealand,” Accident Analysis and Prevention, vol. 36, no. 1, pp. 49–61, 2004.

[3] Alister Anthony Pareira v. State of Maharashtra, 648, SCC, 2012

[4] Indian Penal Code, 1860, § 304

[5] Indian Penal Code, 1860, § 337

[6] Supra 3

[7] Indian Penal Code, 1860, § 279

[8] Indian Penal Code, 1860, § 336

[9] Supra 4

[10] Indian Penal Code, 1860, § 338

[11] Indian Penal Code, 1860, § 427

[12] Motor Vehicle Act, 1988, § 185

[13] Bombay Prohibition Act, 1949, § 66(1)(b)

[14] Empress of India v. Idu Beg, 1881, All. 776

[15] Code of Criminal Procedure, 1973, § 313.

[16] Supra 13

[17] Dalbir Singh v. State of Harayana, A.I.R. S.C. 1677, 2002

[18] State of Madhya Pradesh v. Saleem, S.C.C. 554, 2005

[19] Supra 18

[20] Jassa Singh v. State of Harayana A.I.R. S.C. 520, 2002

[21] Hanuman v. State of Harayana, AIR S.C. 1302, 1991

[22] Jai Prakash v. State of Delhi Adm., S.C.R. 202, 1991

[23] Joti Parshad v. State of Haryana. S.C.C. 497, 1993

[24] Shivaji Sahabrao v. State of Maharashtra, S.C.C. 793,1973

[25] Jai Dev v. State of Punjab, A.I.R S.C. 612, 1963

[26] William Slaney v. State of Madhya Pradesh, A.I.R. S.C. 116, 1956

[27] Gurbachan Singh v. State of Punjab A.I.R. S.C. 623, 1957

[28] Pushpabai Parshottam Udeshi v. Ranjit Ginning and Pressing Co. P. Ltd., S.C.R. 372, 1977

[29] Thakur Singh v. State of Punjab, S.C.C 208, 2003



Article by Deepa Bajaj

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