Section 304-A: Drunk Drivers’ Boon, Their Victim’s Bane

Salman Khan’s case is about his alleged drunken state that fateful night. A person driving in an inebriated condition does not have control over the vehicle. And accidents can happen. They did happen. People can get killed. People got killed.

The question is should Salman have been punished only for drunk driving or for killing a person?  

Had he been charged only under Section 304-A, he would have been let off or made to serve a simple jail term. As to the death, he would have been asked to pay a paltry fine as compensation to the kin of the dead. End of story.

But there was someone who perhaps considered it was not justice, considered that the crime was heinous than mere negligent driving and that the accused was also responsible for the dead person. In the event, Salman was charged under Section 304-II. That’s the only way he could have got five years.

Salman Khan is lucky to get away with five years. Had he been in Japan – where the SUV he was driving comes from – he would have been in jail for 15 years. And Japanese courts would have completed the trial and sentenced him in 2002 itself. Salman in that case would be expecting to get out any time now! Being in India, and what Indians can do to “manage” law, he is yet to begin his jail term. Rather, he is yet to go to jail!

In India, the laws related to offences such as Salman’s are superficial and their enforcement is often turned into a farce. The Salman verdict is no deterrent to future accidental deaths caused by drunk drivers.

I am not saying it. It is the Supreme Court itself saying it. Ruling in the Alister Periera case similar to Salman’s (http://indiankanoon.org/doc/79026890/),in 2012, it said: “It is high time that law makers revisit the sentencing policy reflected in Section 304A IPC.” That is the crux of the matter.

Rash and negligent driving in this country is dealt with under Section 304A of the Indian Penal Code. It says: “S.304A.-- 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.”

This deals with death caused by any rash or negligent act and where the death is not caused intentionally. In nearly all such cases, the accused are either let off after paying a fine or, in some rare cases, a brief time in jail. In all such cases, however, the accused gets bail. All a lawyer has to prove is that the accused did not have any intention to cause the death (culpable homicide not amounting to murder). That’s all.

Actor Raaj Kumar’s son, Puru, was similarly let off in 1993 thanks to this section even though he was drunk while driving, ploughed over sleeping people in Mumbai and killed two of them. And it was this very section Salman was originally charged under in 2002.

The problems began only after courts intervened and upgraded the crime and charged him under Section 304-II of the IPC. This provides for punishment for culpable homicide not amounting to murder. The relevant portion of the section reads: “if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death".

In Salman’s case, the courts probably felt that Section 304-A punishment was too little. So, Section 304-II was stipulated. I assume this means that the courts thought any person with reasonable brains – and Salman has one – knows and understands that if he drives, that too at high speed, when drunk, he can cause accidents which can lead to deaths. Which means, even though he had no intention to kill anyone, he was aware that if he was driving drunk he could cause an accident which could kill someone.

There are those who contend that Salman should have been tried under Section 304-A. Their logic is: This section specifically relates to rash and negligent driving. And that is exactly what Salman was accused of. A specific offence, a specific law. Period. Then why apply a “general law” like Section 304-II and complicate matters?

Obviously this logic does not even consider the fact that Salman’s act caused the death of a person. A life snuffed out for no reason. And the accused simply gets away with a fine or a simple jail term just because the section he was charged with does not charge him also with causing the death? By giving the logic that the accused simply did not have the intention to kill that person?

Nonsense.

In the Pereira case, the Supreme Court said the punishment should be commensurate with the gravity of the crime. In that case, Periera, whose drunk drivng caused the death of seven persons in Mumbai in 2006, questioned the application of Section 304-II.

The court upheld the use of that section: “….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. There is a presumption that a man knows the natural and likely consequences of his acts.”

In the court’s view, Periera’s action – similar to Salman’s – was a “despicable aggravated offence”. It did not want any leniency to be shown to the accused: “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…”

Time to call for a serious look at Section 304-A? Don’t want the next such case to drag on for a generation or the next Salman let off with a fine, do we?