Salman Khan set to appeal, how have courts seen IPC 304 (II)?https://indianexpress.com/article/explained/hit-and-run-case-salman-khan-set-to-appeal-how-have-courts-seen-ipc-304-ii/

Salman Khan set to appeal, how have courts seen IPC 304 (II)?

There have been several cases earlier in which high-profile accused were charged after hit-and-run mishaps under Section 304 Part II.

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Salman was initially booked under Section 304A (causing death by negligence, punishable with imprisonment up to two years), and later charged with Section 304 Part II (culpable homicide not amounting to murder).

The five-year sentence for actor Salman Khan for killing a homeless man and injuring four others in a hit-and-run driving case has brought the focus back on Section 304 Part II of the Indian Penal Code, an otherwise innocuous provision among many penal clauses that are much more stringent.

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The reason why this clause — out of the plethora of other IPC sections under which Salman was chargesheeted — will likely be at the centre of the star’s appeal against his conviction can be found in history: both of this section, and of Salman’s earlier legal battle to escape being charged under this clause.

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Salman was initially booked under Section 304A (causing death by negligence, punishable with imprisonment up to two years), and later charged with Section 304 Part II (culpable homicide not amounting to murder, which carries a maximum punishment of 10 years). His appeal against the decision of the magistrate’s court to amend the chargesheet went up to the Supreme Court.

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On December 18, 2003, the Supreme Court upheld the magistrate’s decision, but without commenting on the merits of the amended chargesheet — thus leaving the door open for the actor’s lawyers to challenge the charge and subsequent conviction under Section 304 Part II.

The Bombay High Court had, incidentally, ruled that there was not enough material to frame a charge under Section 304 Part II, something that the SC didn’t agree with, holding it was “too premature a finding and ought not to have been given at this stage”.

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The SC Bench also recorded its unhappiness over the actor’s decision to question the amendment of the chargesheet: “The entire exercise which culminated in the impugned judgment of the High Court, in our opinion, was an exercise in futility and sheer waste of time and money.”

There have been several cases earlier in which high-profile accused were charged after hit-and-run mishaps under Section 304 Part II. The case of Alister Anthony Pareira, who was convicted of mowing down seven people on Mumbai’s seafront Carter Road in 2006, is frequently cited.

In its judgment in the Pareira case, a Supreme Court Bench comprising Justices R M Lodha and Jagdish Singh Khehar ruled that “a person responsible for a reckless or rash or negligent act that causes death which he had knowledge as a reasonable man that such act was dangerous enough to lead to some untoward thing and the death was likely to be caused, may be attributed with the knowledge of the consequence and may be fastened with culpability of homicide not amounting to murder and punishable under Section 304 Part II IPC”.

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The Bench also stressed the importance of sentencing: “One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done.”

The court went on to elaborate: “The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong… The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should ‘respond to the society’s cry for justice against the criminal’.”

The Supreme Court did not agree with the Bombay HC’s award of just three years in prison, pointing out, “Seven precious human lives were lost by the act of the accused. For an offence like this which has been proved against the appellant, sentence of three years awarded by the High Court is too meagre and not adequate.”

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It did not consider the “matter for enhancement” of punishment because the prosecution chose not to appeal against the “meagre” sentence.

Another judgment that will almost certainly feature in Salman’s appeal was delivered by the SC in the Sanjeev Nanda case. Nanda, who was driving drunk, had crushed six people under his BMW in Delhi in 1999. In this case too, the SC had upheld the trial court’s order to convict the accused under Section 304 Part II.

The court had observed: “Drunken driving has become a menace… Every day (it) results in accidents and several human lives are lost, pedestrians in many of our cities are not safe. Late night parties among urban elite have now become a way of life followed by drunken driving…”

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The SC had ordered Nanda to perform community service for two years, and fined him Rs 50 lakh. The amount, the Bench ruled, would be used by the Union of India to provide compensation to the victim of motor accidents, where the vehicle owner, driver, etc, remained untraced.

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Incidentally, all three cases — Salman Khan, Sanjeev Nanda and Alister Anthony Pareira — have a common strain: all the accused, rich and powerful, were drunk at the time of the accident.

maneesh.chhibber@expressindia.com