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Drunken driving: Legal provisions in India

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Drunken driving in India: Legal Analysis and Judicial Pronouncements

Introduction

“The effect of alcohol on the brain is sedative from the beginning. Its apparently stimulating effect is due to the fact that it deadens the higher control centres and gradually other centres as well, so weakening or removing the wariness that normally keeps us within the bounds of civilized behaviour.[1]

Alcohol is often associated with violent crimes, but this does not mean that alcohol is a casual factor.[2] There are a lot of people who drink a social glass, and most of them do become inebriated without being violent. However, case histories show us that a few people who are generally peaceful, become violent after drinking and getting inebriated for some reason.[3]

Alcohol is differentiated from drugs generally as a matter of fact, though it is a drug in itself scientifically speaking. With regards to the effect of alcohol on mens rea, psychedelic drugs pose similar legal problem but is dealt as alcohol is dealt with.[4]

Convicting an offender who committed an offense or crime under the influence of alcohol like all other offenders who did it with conscious state of mind may be harsh but offense is offense overall. On the other hand it is quite common for the offenders to consume alcohol before committing a crime. Hence it may not be in the interest of the society to treat voluntary intoxication as a defence as man by consuming alcohol voluntarily impairs his own self control and good judgment by getting intoxicated with the alcohol consumption.[5]

Given the number of offenses related to drunken driving is on the rise, voluntary intoxication in these cases shouldn’t go unpunished. The mere sentencing and conviction for drunken driving related offenses under sections 304 Part II, 338 and 304A have failed to deter people from consuming alcohol and still taking on the roads with utter disregard to the safety of themselves as well as of others[6] as seen in Anthony Pereira[7], Sanjeev Nanda[8] case.

Voluntary Intoxication

Early Common law made no concessions whatsoever because of voluntary intoxication.[9] There was confusion until the House of Lords in 1909 allowed voluntary intoxication to be used as complete defence in cases where it could be shown that due to intoxication mens rea is negated.[10]

“The next major case helped in clarifying the difference between basic and specific intent.[11] This judgment laid down three principles namely on insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged. The law doesn’t take a note of the cause of insanity. If an actual insanity in fact supervenes, as the result of alcoholic excess. it furnishes as complete an answer to a criminal charge as insanity induced any other cause. Evidence of drunkenness which renders the accused incapable of forming specific intent essential to constitute the crime should be taken into account along with other facts proved in order to see whether or not the person had this particular intent or not. The presumption that a man intends the natural consequences of his acts is not negated by failure of evidence of drunkenness which falls short of proving incapacity in the accused to form the intent necessary to constitute the crime and merely establishing that the accused’s mind affected by drink so that he more readily gave way to some violent passion.[12] The principles have formed the basis of intoxication defence in England ever since. In D.P.P v. Majewski[13], the court reiterated these principle and explained basic intent crimes as crimes of recklessness but there is a presumption that that an intelligible distinction can be made between specific intent and basic intent.

The law on voluntary intoxication in India was laid down in Basdev’s case.[14] This case almost reiterated the Beard[15] stand with respect to voluntary intoxication leading to insanity and the irrelevance of drunkenness in affecting the mens rea.” Albeit, an interpretation using section 86[16] of the IPC was rendered to make a distinction between specific and basic intent. The distinction was drawn along the lines of knowledge and intention. With respect to knowledge, it was held that the intoxicated man must be attributed the same knowledge as if he was sober. With regard to intention, the intent must be gathered from the attending general circumstances of the case paying due regard to intoxication.

Relevant Provisions of the Code

In this chapter the author is going to talk about the sections of the IPC which are attracted when a drunken person causes death by his rash and negligent act.

Knowledge with respect to Homicide

Section 299 thirdly[17] and 300 fourthly[18] of the IPC talk about the knowledge aspect with regard to culpable homicide. The essential ingredient of this clauses is that the act causing death should have been done with the knowledge that such act is likely to cause death and with the knowledge that that the act is so imminently dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death respectively.

“As has been stated earlier, the third degree of intention contemplated under the definition of culpable homicide under section 299 is knowledge. In the scheme of this section, the knowledge requirement is the least or minimum degree of mental element contemplated in order to make an act of homicide culpable.

Knowledge means consciousness.[19] Knowledge denotes a state of consciousness of certain facts in which human mind remains inactive.[20] It denotes a bare awareness of the consequences of the person’s conduct.[21] The offender should reasonably expect that the consequence of his act would probably result in the death of a person, even there’s no intention on his part. The word likely as used in section 299 and in section 300 denote a different degree of likelihood of death. The word in sec. 299 convey sense of probability as distinguished from mere possibility or probability.[22]

Section 300 fourthly contemplates generally commission of those acts which are so imminently dangerous that it must in all probability result into death o such bodily injury which is likely to cause death.” Under this section, the act need not be directed towards a particular individual nor there be any intention to cause death. It has to be a mere reckless act, which is imminently dangerous.

The essential ingredients of section 300 fourthly are :

  1. the act must be imminently dangerous;
  2. the person committing the act must have the knowledge that it is so imminently dangerous;
  3. that it must in all probability cause (a) death or (b) bodily injury as is likely to cause death; and
  4. such imminently dangerous act should be done without any reason or justification for running the risk of causing death or injury.

The imminently dangerous requires that the danger should be close at hand and be immediate. Hence, in this clause the prosecution need not prove the intention to cause death. The recklessness and inexcusability of an act must be by the facts and circumstances of each case, because such imminently dangerous act will amount to murder only if done with no excuse for incurring the risk of causing death.

Whether the act amounts to murder or culpable homicide depends upon the degree of risk to human life. If the act’s most probable result is death, then it is murder and if the likely result of the act is death, then it’s culpable homicide.[23]

 Rash or Negligent Act

“Section 304A[24] deals with death caused by a rash or negligent act. However to apply this section for causing death by a rash or negligent act, the death so caused should not amount to culpable homicide.[25] An important point to note is that there is a distinction between a rash act and a negligent act. Rashness conveys the idea of recklessness or doing an act without giving due consideration to it, while a negligent act connotes want of proper care.[26] A rash act implies an act done by the doer with indifference as to the consequences of that act with recklessness. The doer , being conscious of the troublesome or illegal consequences does the act knowing that his act may bring some undesirable or illegal results but without hoping or intending them to occur.[27] An act done without sufficient precautions or reasonable precautions so as to avoid its probable illegal consequences is a negligent act. A negligent act implies an omission to do something, which a reasonable man wouldn’t do given the circumstances are the same.

It is the degree of negligence that determines whether a particular act would be termed s rash and negligent act as defined under this section. It is only when the degree of risk run by the doer of the rash and negligent act is very high or is done with such recklessness and with total disregard and indifference to the consequences of this act, the act then can be constituted as a rash and negligent act under this section. Negligence is the gross and culpable neglect or failure to exercise reasonable and proper care, and precaution to guard against any injury, either to public in general or to an individual in particular, which a reasonable man would have adopted.[28]

The essence of this act is that the death caused must not be as a result of an intentional act. Voluntary act done with the knowledge that the act is likely to cause death will be culpable homicide. In order to impose liability under this section, it is essential to establish that the death was a direct result of the rash and negligent act of the accused. It must be causa causans – the immediate cause and not causa sine qua non – the proximate cause.[29]

Generally in cases of driving, a person who is driving the motor vehicle is expected to always be in control of the vehicle in such a manner as to enable him to prevent hitting any person or any other vehicle, who may be on the road, which seems to be not there where a person is in a drunken state with absolute no regards to one’s own safety forget about others.

Judicial Pronouncements

Alister Anthony Pareira[30]

This judgement is considered to be a landmark judgement with respect to drunken driving cases. The facts of the case are as such that the appellant at about 04:00 A.M. ran over his car on the pavement killing seven persons, six died on the spot while one died later. The appellant was found to be in a drunken condition at that time and a liquor bottle was recovered from his car. The appellant’s blood samples showed the level of alcohol in the blood to be above the permissible limit. Interesting point to note is that the appellant was the resident of the nearby area and was fully familiar with the area where accident took place.

The Trial court convicted the appellant under section 304A and 337 of the IPC, albeit the appellant wasn’t charged under Section 304 Part II and 338. The state appealed to the High Court to charge the appellant under the above said sections. The High Court acquitted the appellant under section 304 of the IPC but convicted him under Section 304 Part II and 338.

The main contention before the Supreme Court was whether Section 304 Part II and 338 are mutually exclusive or not?

The Supreme court came to the conclusion that the indictment of an accused under Section 304 Part II and Section 338 IPC can coexist in a case of single rash or negligent act. It further stated that if the act was done with the knowledge of the dangerous consequences which are likely to follow and if death is caused then not only is the punishment for the act, but also for the resulting homicide; and the case may fall within Section 299 or Section 300 depending upon the mental state of the accused. The court further opined that knowledge is awareness on the part of the person concerned of the consequences of his act of omission or commission indicating his state of mind. Further, relying on the case of Prabhakaran v. State of Kerala[31], the judges stated that there may be knowledge of likely consequences without any intention. Thus, distinguishing on the facts of Prabhakaran, the court stated that 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 for the act, but also of the result. Section 304-A IPC excludes from within its ambit the cases of death of any person by doing any rash or negligent act amounting to culpable homicide of either description. In attributing the knowledge of his act of driving the vehicle at such high speed in a rash or negligent manner was dangerous enough, the court stated that there was a presumption that a man knows the natural and likely consequences of his acts. Moreover, the act did not become involuntary act simply because its consequences were unforeseen.

Sanjeev Nanda[32]

This case concerns whether the accused can be charged under section 304 Part II or section 304A for the offense committed under the intoxication of alcohol and running away from the scene of crime, basically this is a hit and run case.

The respondent, Sanjeev Nanda was driving a BMW car in a rash and negligent manner and at about 04:00 A.M. the car came at a high speed and dashed violently against few men standing at the corner of the road. The impact was so great and severe that the persons standing flew in the air and feel on the bonnet and windscreen of the. Some of them rolled down and came beneath the car. On account of this the accused lost control of the vehicle which swerved to the right side of the road and ultimately hit the central verge. The persons who came under the vehicle were dragged to this point from the corner. After hitting the central verge the car stopped at some distance, the respondent came out from the car and inspected the ghastly site. It is said that the co-passenger of the respondent asked him to rush from the site of this gruesome horror. The respondent ignoring the injured persons who were crying and shouting for help fled the scene, even though there were still some persons beneath the car. The accused then drove the car to his friend’s house where they washed the car and destroyed the material evidence. The blood samples collected from the accused showed the level of alcohol in the blood to be above the requisite level.

It is interesting to note that all but one witnesses turned hostile. The trial court convicted the respondent under section 304 Part II, while the High Court altered the conviction under section 304A  and held that the though the act of the accused amounted to rashness and negligence and endangering the lives of the others, since there was no intention or knowledge of causing death, Section 304 Part II cannot be applied.

The Additional Solicitor General also raised a contention that given the gravity of the offense was of such nature that it is touching the boundaries of the Section 300 fourthly of the IPC. Further he also pointed out that the knowledge of the second degree comprehended from the Part III of section 299 of the IPC, where the death is caused by the offender by an act which the offender knows is likely to cause death, would be attracted.

According to J. Radhakrishnan, the scene of the crime was horrifying, and to him it clearly indicates beyond doubt, that the accused had the knowledge that the persons who were hit by the car might die but left the scene of occurrence without caring for human lives.

Section 185[33] of the Motor Vehicles Act talks about driving by a drunken person or by a person under the influence of drugs. It lays down the level of alcohol permissible in blood and subsequent punishment for violation of it.

“Further the court decided on whether the offence committed would come under section 304A or 304 Part II. The court relied upon Alister Anthony’s[34] case and held that the person must be presumed to have had the knowledge that, his act of driving the vehicle without a license in a high speed after consuming liquor beyond the permissible limit, is likely or sufficient in the ordinary course of nature to cause the death of pedestrians on the road.  The court further reiterated that assuming that the respondent driving in a drunken condition had no intention nor knowledge that his act is likely to cause death wouldn’t be valid here as in the present case the accused after having hit so many people with bodies scattered around, he had the knowledge that his act is likely to cause death of so many people, lying unattended.”

Thus he was convicted under section 304 Part II.

Imputation of knowledge

A distinction is made between offenses requiring intention and mere knowledge in case of voluntary intoxication (something similar like specific and basic intent). The law in India as per section 86[35] of the IPC and the interpretation rendered to Basdev[36], has been that one can presume the consequences of one’s action but not the intention to do the same. The first part of the section talks about nothing being an offence if done without any knowledge or intention but the second part refers only to intention and the intoxicated accused would be presumed to have the knowledge as of a sober man but not the same intention of a sober man.[37]

“Such a rule leads to the problematic issue of whether the presumption of knowledge in such cases (Sec. 86) is valid and if not, whether it should be done away with. The rationale behind presuming knowledge to an intoxicated person lies in the belief that voluntary intoxication is in itself an act of recklessness. On this basis, the accused who is drunken is deemed to have foreseen the consequences of his intoxication, as and when they occur. While this does not make a difference in case of offences requiring only the establishment of objective recklessness, it does make a difference where the prosecution is required to show recklessness subjectively. In the latter cases, with involuntary intoxication, although the accused may not have foreseen the consequences of his actions, but he will be presumed to have done so.[38] Why? The very taking of the intoxicant is deemed to be reckless and constitutes sufficient culpability to secure conviction of the knowledge based offence.

The author thinks such proposition is valid as when a person who is presumed to know the consequences of his acts, he cannot be held not responsible for the deaths that he has caused for mere fact that the accused was drunk and thus couldn’t form any requisite intention nor knowledge.” This defence will give him a free ticket to get away with his consequences. From the above two cases discussed Anthony[39] and Sanjeev[40], it seems that the accused had the knowledge that how dangerous they were driving as it can be seen that the accused tried running away from the scene in the latter case as well as destroying evidence without rendering any help. Another case which also shows the mere recklessness of such drunk drivers is that of Salman Khan[41] where he also ran away after hitting a laundry shop where people were sleeping outside, and without rendering any help to the victims who were trapped under the wheels.

The author thinks the prosecutors have been reluctant to raise the issue of section 299 clause three and section 300 fourthly. These two sections talk about the knowledge aspect which is required to be proved so as to make a person liable for homicide. In cases of drunken driving a person who is presumed to have knowledge of his/her act’s consequences and the courts have subsequently held this presumption valid, can be charged under these section as the act of accused is likely to cause  death and in some cases the act is going to result in death in all probability.

Conclusion

The author believes that drunken driving offences should be dealt seriously and the punishment should be enhanced. There have been instances where the accused, who is under the influence of alcohol is said to have possessed no intention nor knowledge so as to regard his act as not being liable for homicide, but at the same time the accused person’s after hitting a person runs away or destroy the evidence, which shows they were conscious about what’s happening. In most of the cases the accused driver has alcohol content in his/her blood above the permissible limit as prescribed by the Motor Vehicles Act, 1988. The accused person’s usually in drunken driving cases drive a powerful machine in a rash and negligent manner and beyond reasonable control over it. In some cases the accused person’s after hitting people, choose to drive so as to disentangle the victims from the car rather than helping them, and running away from the scene without informing the police about such incidents and trying to destroy evidence available. Thus all of this things coupled together, the author thinks though intention cannot be attributed to a person but knowledge can and in cases like Sanjeev Nanda, his acts are in all probability going to result into death but still the court seems to be ignorant about the application of section 300 fourthly in these cases.

The author has first talked about what is voluntary intoxication, when can you presume mens rea to a person who is voluntary intoxicated. Then the author has talked about the various provisions of the IPC that are attracted when a drunken driver causes death of a person. The author has talked about how and why knowledge can be presumed to a person who is intoxicated. Then the author has looked at the two most important supreme court judgements regarding causing death by a driver who was drunk. With the help of this judgement and various other the author has concluded by saying how knowledge is imputed in cases of voluntary intoxication. The author suggests that the court should look into section 300 fourthly as well because (i) a voluntarily drunk person is presumed to have knowledge of the natural consequences of the act that he commits and from case to case basis we should look at whether the accused tried rendering help or with the consciousness tried fleeing away the scene; and (ii) giving harsher punishments will deter the repeated offenders as well as people from drinking and driving, as they are not only threat to themselves but also to others, by endangering their lives too.

Thus according to the author, the ambit of drunken driving can be brought under section 300 fourthly.

[1] Jennifer R. Redman et al., Intoxication and Criminal Behaviour, 7 Psychiatry Psychological and Learning 59 (2000).

[2] Susan E. Martin, The Links between Alcohol, Crime and the Criminal Justice System: Explanations Evidence and Interventions, 10(1) american journal on addictions 135, 136 (2001).

[3] Jeffery Fagan, Intoxication and Aggression, 13 Crime and Justice 240, 241 (1990).

[4] R. v. Lipman, (1970) 1 Q.B. 152 (Queen’s Bench).

[5] PSA Pillai’s Criminal Law 113 (K.I. Vibhute, 12th edn, 2013).

[6] Drunk Driving Cases: Govt. mulls greater punishment, the tribune (August 11, 2015) available at http://www.tribuneindia.com/news/nation/drunk-driving-cases-govt-mulls-greater-punishment/118280.html (Last visited on April 18, 2015).

[7] Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648 (Supreme Court of India).

[8] State v. Sanjeev Nanda, (2012) 8 SCC 450 (Supreme Court of India).

[9] J. Hall, Intoxication and Criminal Responsibility, 57 harvard law review 1045, 1056 (1943-44).

[10] R. v. Meade, (1909) 1 KB 895 (King’s Bench).

[11] Director of Public Prosecutions v. Beard, (1920) A.C. 479 (House of Lords).

[12] A.P. Semester, Intoxication is never a Defence, 01 criminal law review 3, 5 (2009).

[13] D.P.P v. Majewski, (1977) A.C. 443 (House of Lords).

[14] Basdev. State of Pepsu, AIR 1957 SC 488 (Supreme Court of India).

[15] D.P.P v. Beard, (1920) A.C. 479 (House of Lords).

[16] Sec. 86, The Indian Penal Code, 1860.

[17] Sec. 299 thirdly, The Indian Penal Code, 1860.

[18] Sec. 300 fourthly, The Indian Penal Code, 1860.

[19] PSA Pillai’s Criminal Law 583 (K.I. Vibhute, 12th edn, 2013).

[20] Id.

[21] Jai Prakash v. State, (1991) 2 SCC 32 (Supreme Court of India).

[22] Raj Pal v. State of Haryana, (2006) 9 SCC 678 (Supreme Court of India).

[23] Hari Singh Gaur’s Penal law of India, Vol. 3, 525 (11th edn, 1998).

[24] Sec. 304A, The Indian Penal Code, 1860.

[25] State of Gujarat v. Haider Ali, AIR 1976 SC 1012 (Supreme Court of India).

[26] Emperor v. Abdul Latif, AIR 1944 Lah 163 (Lahore High Court).

[27] Shiv Dev Singh v. State, (1995) Cr LJ 2142 (Del) (Delhi High Court).

[28] SN Hussain v. State of AP, AIR 1972 SC 685 (Supreme Court of India).

[29] Kurban Hussein v. State of Maharashtra, AIR 1965 SC 1616 (Supreme Court of India).

[30] Alister, (2012) 2 SCC 648 (Supreme Court of India).

[31] Prabhakaran v. State of Kerela, (2007) 14 SCC 269 (Supreme Court of India).

[32] Sanjeev Nanda, (2012) 8 SCC 450 (Supreme Court of India).

[33] Sec. 185, The Motor Vehicles Act, 1988.

[34] Alister, (2012) 2 SCC 648 (Supreme Court of India).

[35] Sec. 86, The Indian Penal Code, 1860.

[36] Basdev, AIR 1957 SC 488 (Supreme Court of India).

[37] Karan Lahiri and Sivakumar Sindhu, Insanity and Intoxication as Defences: An Appraisal, 31(01&02) cochin university law review 170, 185 (2007).

[38] Id.

[39] Alister, (2012) 2 SCC 648 (Supreme Court of India).

[40] Sanjeev, (2012) 8 SCC 450 (Supreme Court of India).

[41] Salman Salim Khan v. State of Maharashtra, (2015) SCC 6096 (Bombay High Court).

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