Kerala High Court
P.M.Raju vs State Of Kerala on 26 February, 2021
Crl.Appeal No.1531/08 -:1:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 26TH DAY OF FEBRUARY 2021 / 7TH PHALGUNA, 1942
CRL.A.No.1531 OF 2008
AGAINST THE JUDGMENT IN SC 507/2007 DATED 25-07-2008 OF VI
ADDITIONAL DISTRICT & SESSIONS COURT, ERNAKULAM
APPELLANT/ACCUSED:
P.M.RAJU
AGED 47 YEARS,S/O MADHAVAN,
PALAKKUNNEL HOUSE,
KUTTAMPUZHA,
KOTHAMANGALAM.
BY ADVS.
SRI.C.P.UDAYABHANU
SMT.PREETHI K.PURUSHOTHAMAN
SRI.BOBAN PALAT
SRI.P.U.PRATHEESH KUMAR
SRI.NAVANEETH.N.NATH
SHRI.RASSAL JANARDHANAN A.
SHRI.ABHISHEK M. KUNNATHU
SRI.P.R.AJAY
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA
REP.BY THE S.I. OF POLICE,
KOTHAMANGALAM, (CRIME NO. 156/07)
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
*2 C. SUNDARAN
AGED 42 YEARS,S/O. CHELLAPPAN ACHARI,
ILLATHUPARAMBU,
ELAVOOR, PURAKKADAVU PANCHAYAT,
PURAKKADAVU VILLAGE,
ERNAKULAM.
Crl.Appeal No.1531/08 -:2:-
*3 SELVARAJ
AGED 42 YEARS,S/O. KUNJAPPAN,
KALLATHU,
KUNNAPPILLYSSERY, PULIAMAM P.O.,
ERNAKULAM.
*(ADDL. R2 AND R3 IMPLEADED AS PER ORDER DATED
15/02/2021 IM CRL.M.A. No.8823/2008.
R1 BY SMT.SYLAJA S.L., PUBLIC PROSECUTOR
R2-3 BY ADV. S.RAJEEV
ADV. DHEERENDRA KRISHNAN K.K.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 19-02-2021, THE COURT ON 26-02-2021 DELIVERED THE
FOLLOWING:
Crl.Appeal No.1531/08 -:3:-
"C.R."
JUDGMENT
Dated this the 26th day of February, 2021
Five score and more young children, along with a dozen
teachers went on a fun and frolic for an entire day through the
picturesque places around Kothamangalam town. As dusk was
setting in, the group decided to wind up their picnic with a short boat
ride through the bewitching Periyar river near Thattekkadu.
2. The much awaited picnic which ought to have ended with
the boat ride, unfortunately ended in snuffing out the lives of 15 of
those young children and three teachers. Water is alleged to have
seeped into the boat resulting in its capsize and causing death by
drowning of the passengers. What started as great fun for all, ended
in a watery grave, at least for a dozen and a half. The news of the
tragedy sent waves of sorrow sweeping across the State and tears
trickling down those who heard it.
3. The boat driver was blamed by the police and was charged
with culpable homicide not amounting to murder. The court which
tried the offense, though had modified the charge to include rash and
negligent act causing death also, as an additional charge, found the
offender guilty for culpable homicide not amounting to murder. He
challenges his conviction and sentence in this appeal.
4. The above description, though brief, sums up the issue that
has arisen for consideration. However, for the purpose of
completeness, the following is narrated as facts of the case.
The prosecution alleged that on 20.2.2007 at 6.05 pm, the
accused, who was the owner as well as the driver of a boat by name
"Sivaranjini", having a passenger capacity of 6 persons, carried 61
persons including 53 students, 7 teachers and 1 non-teaching staff of
Elavoor St.Antony's U.P. School and that due to overloading while
the boat was being turned to return, water started seeping through a
hole at its rear end and the boat capsized and sank in the river
causing the death of 18 persons including 15 children. The accused
was alleged to have committed the offence under Section 304 IPC.
After committal of the case to the Sessions Court, charges were
framed under Sections 304, 280 and 304A IPC also, to which the
accused pleaded not guilty.
5. In order to prove the prosecution case, PW1 to PW67 were
examined and Ext.P1 to Ext.P81 were marked while the defence
examined DW1 and marked Ext.D1 to Ext.D8. Material objects were
marked as MO1 to MO10.
6. The learned Sessions Judge, after elaborate consideration,
found the accused guilty for the offence under Section 304 IPC and
sentenced him to undergo rigorous imprisonment for 5 years and to
pay a fine of Rs.1,50.000/-. The fine amount, on realisation, was
directed to be paid equally to the parents of the deceased children as
compensation under Section 357(1)(b) of the Cr.P.C.
7. Aggrieved by the conviction and sentence of the accused as
stated above, this appeal has been preferred.
8. We have heard Adv.C.P.Udayabhanu, learned counsel for
the appellant and Smt.Sylaja S.L., learned Public Prosecutor for the
State. Since the parents of two of the victims were permitted to
assist the prosecution, we heard Adv.Dheerendra Krishnan K.K. and
Adv.S.Rajeev on their behalf.
9. Adv.C.P.Udayabhanu, learned counsel for the appellant,
contended that the prosecution had miserably failed to prove the guilt
of the accused. The learned counsel also argued that the ingredients
of Section 304 IPC were not attracted in the instant case and nothing
was brought out in evidence that could attribute knowledge to the
accused that the act done by him would cause the death of the
children. He relied upon the inconsistent evidence of the students as
well as the teachers and argued that the accident occurred due to the
action of the passengers and since the act of the accused was not
the direct cause of the accident, conviction even under Section 304A
of the IPC is not warranted in the instant case.
10. The learned Public Prosecutor Smt.Sylaja, contended that
the act of the accused clearly comes within the contours of Section
304 IPC and also argued that the appellant does not deserve any
sympathy as 18 persons died due to his act, which satisfies the
ingredients of Section 304 IPC.
11. Adv.Dheerendra Krishnan K.K., supporting the prosecution
argued that the unscientific alteration of the boat along with overload
were the main reasons for the boat capsizing, which led to the death
of 18 persons and that such unscientific alteration was totally within
the knowledge of the accused. He pointed out to the evidence of
PW46, PW47 and PW48 and pleaded that the absence of life-saving
equipment coupled with the unscientific modification, without
displaying the capacity of the boat and the absence of permit or
fitness certificate to ply the boat on the water, and the owner of the
boat himself being the driver, clearly evinced the factum of
knowledge, under section 304 IPC and sought for affirming the
conviction of the accused.
12. I have considered the contentions raised and have
perused the materials placed on record along with the evidence
adduced, apart from the various decisions cited at the Bar.
13. The accused does not deny ownership of the boat, or
navigation of the boat by him as a driver, on the ill-fated day. Though
the permitted capacity of the boat was only for 6 passengers, it was
not denied that 61 passengers, including 53 children and 8 teachers
were on the boat at the time of the incident. However, the reason for
the capsize of the boat and the drowning of the passengers is
disputed. When the prosecution alleged that water seeped in through
a hole on the yellow boat attached in the middle, causing the boat to
overturn, the accused defended that the boat capsized due to other
reasons. According to the defense when students came towards one
side in their attempt to catch a glimpse of rare bird nests, the boat
tilted, and suddenly PW44 - a teacher, jumped out of the boat
causing it to overturn.
14. The boat that sustained the accident is of a peculiar build.
It is built using 3 boats that are connected together by a platform and
roof. On either side are two white coloured boats with a yellow-
coloured boat in the middle. PW46 was the Chief Inspector of Boats,
who deposed that the inspection certificate Ext.P21 was issued in the
name of one Vipin K.Baby, who had sold the boat to the accused on
18-10-2006 and that though the capacity of the boat was 2 tons,
permission was granted to carry only 6 passengers. It was also
deposed by him, that whenever any alterations are made to the boat,
it was necessary to obtain a fitness certificate and that during his
inspection he had found alterations carried out to the boat without
permission. He further stated that if the boat carried only the
permitted capacity of passengers during the voyage, even if those
passengers shift their position to one side of the boat still, the boat
will not capsize. He also deposed that he had not found any hole in
the boat during his inspection.
15. The primary question that arises for consideration is
whether the accused had committed an offence coming under
Section 304 of the Indian Penal Code.
16. Section 304 IPC has two parts. Both parts deal with
culpable homicide not amounting to murder. Section 299 of the IPC,
explains culpable homicide. It provides that if an act is done with the
intention of causing death or with the intention of causing bodily
injury that is likely to cause death or with the knowledge that the act
is likely to cause death and if ultimately death ensues, then it
amounts to culpable homicide. Culpable homicide is of two types.
(i) murder and (ii) culpable homicide not amounting to murder. Thus
culpable homicide is the genus of which murder is a species. Legally
every murder is culpable homicide, while the converse, i.e; every
culpable homicide is not murder. Punishment for murder is provided
under Section 302 IPC, while punishment for culpable homicide not
amounting to murder is provided for in Section 304 IPC.
17. Section 304 IPC, as mentioned above, deals with culpable
homicide not amounting to murder. Those acts that fall within the five
exceptions mentioned in Section 300 IPC, when done with the
intention of causing death or with the intention of causing such bodily
injury that is likely to cause death, fall within the first part of Section
304 IPC. The second part of Section 304 IPC deals with culpable
homicide not amounting to murder when the act is done without any
intention to cause death or bodily injury as is likely to cause death,
but with the knowledge that his act is likely to cause death.
18. In the instant case, the prosecution has not alleged that the
act committed by the accused was done with any intention to cause
death or cause bodily injury as is likely to cause death. Thus, even
according to the prosecution, the offence alleged against the
accused could come only under Part II of Section 304 IPC.
19. This leads the court to consider the parameters required to
be proved by the prosecution. To bring home the guilt of an accused
under Section 304 Part II of the IPC, the prosecution has to prove
that (i) an act was done by the accused, (ii) the said act of the
accused caused death, and, (iii) the said act was done with the
knowledge that it is likely to cause death.
20. While appreciating the evidence adduced, it is necessary
to identify the act done by the accused. PW1, PW5 and PW38 to
PW45 are the occurrence witnesses while PW46 to PW48 are the
technical witnesses. PW38 to PW43 are the school children while
PW1, PW44 and PW45 are the teachers and all of them were on the
boat. From the evidence of PW1 and those of PW44, and PW45,
when read along with PW46, what is discernible is that in an
unscientifically modified boat, the accused carried passengers
beyond the limits of capacity, without proper licenses and without
containing life-saving equipment. PW1 deposed that there was a hole
in the boat through which water seeped in while PW37 stated that he
is unaware of how water seeped into the boat. PW40 stated that
there was no water inside the boat when they started the ride but that
water entered the boat when the boat was turned for returning back.
The evidence also proves that the passengers moved towards one
side of the boat causing it to tilt. The evidence of PW48 on the other
hand who inspected the boat later and who is a technical person
shows that the boat had no holes through which water could seep in.
PW46 referring to Ext.P21 had stated that the permitted tonnage
capacity of the boat was 2 tons. In other words, the boat had the
ability to carry a weight of 2 tons. Witnesses have also stated that the
accused tried his level best to save the passengers from drowning.
21. The evidence of PW46, PW47 and PW48 are all opinion
evidence and cannot be given more greater value than an opinion.
Though their evidence is relevant, the same is not conclusive.
22. A mere knowledge that if there is overloading on a boat,
there is a possibility of the boat sinking, is not the required
knowledge contemplated under Section 304 IPC to bring home a
case of culpable homicide. The knowledge, contemplated under
Section 299 and 304 IPC is of a higher degree. Knowledge of a
mere possibility that the act may cause death is not the knowledge
envisaged. The degree of knowledge required to bring an act within
the realm of culpable homicide must be a knowledge that is almost
on the verge of certainty and not a mere possibility. When the
knowledge is laced with several imponderables, to make it likely to
cause death, such knowledge cannot be raised to the level of
knowledge contemplated in Section 299 IPC to make it punishable
under Section 304 Part II IPC.
23. In the decision in Mahadev Prasad Kaushik vs State of
Uttar Pradesh and Another [(2008) 14 SCC 479], it was held that
mere knowledge on the part of a person in driving a vehicle that his
act is likely to cause injury or death is not sufficient to make out the
offence under Section 304 Part II of the IPC. In other words, the
extent and ambit of the knowledge required to be established to bring
home guilt under Section 304 Part II are different. It requires an
appreciation and an objective enquiry as to how a person, placed in
the situation of the accused would have regarded the chance of the
act causing death.
24. In Alister Anthony Pereira v. State of Maharashtra
[(2012) 2 SCC 648], after considering various decisions dealing with
the scope of Section 304 Part II, it was held that the question of
whether the accused had the knowledge that would cause the death
of others while driving a motor vehicle, ought to be decided on the
basis of the facts of each case. This proposition has been reiterated
by the Supreme Court in State through P.S Lodhi Colony, New
Delhi v. Sanjeev Nanda [(2012) 8 SCC 450]. Though all the above-
referred decisions are cases that were dealing with the driving of a
motor vehicle on the road either in a drunken manner or otherwise,
the principles relating to Section 304 IPC are stated in those
judgments and they have a bearing while considering the culpability
of the accused in the present case.
25. Viewed in the background of the prepositions laid down as
mentioned above, and from the nature of the evidence adduced, it
can safely be concluded that the accused did not have that degree of
knowledge to the extent of knowing that an accident would occur
causing the death of passengers. From the evidence of PW1, PW 37,
PW40, PW42, and that of PW44 to PW48 it cannot be held that the
prosecution had proved beyond reasonable doubt that the accused
had knowledge that death of the passengers will occur if the boat ride
is taken. In the above circumstances, I am of the view that the
accused is entitled to the benefit of doubt as to the offence under
section 304 IPC and hence the conviction of the accused under
Section 304 IPC is liable to be set aside.
26. Once the conviction of the accused under Section 304 IPC,
is set aside, the question arises as to whether the accused can be
convicted under Section 304A IPC. It is true as held in Vijayan v.
State of Kerala (1991 (1) KLT 325) and Benny v. State of Kerala
(1991 (1) KLT 695) that a person charged with an offence under
Section 304 IPC cannot be convicted for Section 304A IPC in the
absence of a charge having been framed, as the accused was never
called upon to answer a case of rash and negligent act. However,
such a situation does not arise in this instant case, since the court
had, prior to the commencement of the trial, amended the charge
and added an additional charge under Section 304A IPC. Hence,
the accused while going to trial was aware of the charges that were
framed against him, which included Section 304, as well as Section
304A IPC.
27. Section 304A IPC applies in cases where death is caused
by an act that is done rashly or negligently and such an act does not
amount to culpable homicide. Section 304A IPC applies when death
is caused by an act of the accused where all the ingredients of
Section 299 IPC are excluded, but the act that caused death was
done rashly or negligently. It is settled that criminal liability under
Section 304A IPC will arise only when the prosecution proves that
the death of the victim was the result of a rash and negligent act of
the accused and the act must be the immediate and proximate cause
of the death. In other words, the act of the accused must have been
the causa causans and not causa sine qua non for the death of the
victim in a case under section 304A IPC. The aforesaid proposition
can be culled out from the decisions in Kurban Hussein
Mohamedalli Bangawalla v. State of Maharashtra (AIR 1965 SC
1616) and Suleman Rahiman Mulani and Another v. State of
Maharashtra (AIR 1968 SC 829). Causa causans means the
immediate cause as opposed to a remote cause.
28. The observations of Douglas Straight J., in Empress of
India v. Idu Beg [(1881) ILR 3 All 776], are quite poignant. It was
observed as follows:
"Criminal rashness is hazarding a dangerous or wanton act with
the knowledge that it is so, and that it may cause injury, but
without intention to cause injury, or knowledge that it will probably
be caused. The criminality lies in running the risk of doing such
an act with recklessness or indifference as to the consequences.
Criminal negligence is the gross and culpable neglect or failure to
exercise that reasonable and proper care and precaution to guard
against injury either to the public generally or to an individual in
particular, which, having regard to all the circumstances out of
which the charge has arisen, it was the imperative duty of the
accused person to have adopted."
29. The above observations have been quoted with approval in
the decision in Mahadev Prasad Kaushik v. State of U.P. and
Others [(2008) 14 SCC 47], where the Supreme Court went on to
hold that "though the term negligence has not been defined in the
Code, it may be stated that the negligence is the omission to do
something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs
would do or doing something which a reasonable and prudent man
would not do.
30. In Prabhakaran v. State of Kerala [2007 (3) KLT 400
(SC)] the Supreme Court, noticing the distinction between culpable
homicide and rash and negligent act causing death, held that
criminal negligence is the gross and culpable neglect or failure to
exercise that reasonable and proper care and precaution.
31. Since from the discussion, it has come out that the death of
18 persons including 15 school children occurred and that the act of
the accused does not amount to culpable homicide, what remains to
be considered is whether the accused acted recklessly or
indifferently to the consequences or in a manner which reveals
culpable neglect or failure to exercise precaution or reasonable care
to guard against injury.
32. The act alleged to have been done by the accused is the
navigation of the boat. Was the act of navigation of the boat done in
a rash or negligent manner? Navigation starts from the time the
passengers are permitted on board till they disembark. The accused
as an owner and driver of the boat was the person directly in control
of the navigation of the boat. He was the person who had knowledge
of the passenger capacity of the boat. He was the person who
permitted the passengers on board the boat, which was altered
unscientifically. He permitted 61 persons to board the boat, knowing
fully well that the capacity was only 6 passengers. He was also
aware that the boat had no sufficient life jackets or other life-saving
equipment to cater to 61 persons. In spite of knowing the
deficiencies of the boat as stated above, if the accused permitted 61
persons to board the boat and navigated it through the waters of
Periyar river having a depth of more than 6 metres, it bespeaks of a
rash and negligent act. This act of navigation, in gross disregard of
the consequences without sufficient precautions to guard against
injury, amounts to gross negligence and rashness warranting a
finding of guilt under section 304A IPC.I find the accused guilty of the
offence under Section 304A IPC.
33. While considering the sentence to be imposed upon the
accused, it is necessary to appreciate that the sentencing must have
a bearing on the conscience of the society and must reflect a
response to society's cry for justice. A liberal attitude in the
sentencing policy by imposing a meagre sentence or taking too
sympathetic a view would be counter-productive. The principle of
deterrence is also an avowed object of the sentencing policy.
34. Death due to boating accidents could be prevented to a
large extent or at least be minimized by ensuring compliance to the
safety tips in that regard. Responsibility falls equally on the driver as
well as the passenger. Insisting on wearing life jackets and ensuring
the presence of life saving equipment ought to be the responsibility
of those manning the boat. The Officials are also bound to carry out
routine inspections of all boats operating on the waters. There is a
collective responsibility apart from the duty of care owed by the
driver and owner.
35. Navigating a boat through the waters carries an inherent
risk, the degree of which is reduced by using appropriate life-saving
equipment, including life jackets. This responsibility squarely falls
upon the owner of the boat as well as its driver. Taking into reckoning
the fact that the accused was the owner as well as the driver of the
boat on the ill-fated day, this court is of the view that the provisions of
the Probation of Offenders Act, 1958 cannot be applied, as observed
by the Supreme Court in State Tr. P.S Lodhi Colony, New Delhi v.
Sanjeev Nanda, [(2012) 8 SCC 450].
36. Having regard to the circumstances arising in the case and
the nature of the rash and negligent act committed by the accused,
this Court is of the view that the accused is liable to be imposed with
the maximum sentence provided for the offence under Section 304A
IPC, which a Magistrate trying a case under the said section is
empowered to impose. The quantum of fine imposed by the
Sessions Judge under Section 304 IPC shall be the quantum of fine
under Section 304A IPC and the direction to distribute the fine to the
15 children shall stand affirmed.
37. In view of the above, the conviction and sentence imposed
on the accused by judgment in SC 507 of 2007 on the files of the
Additional Sessions Court Ernakulam, under Section 304 IPC are set
aside. However, the accused is found guilty for the offence under
Section 304A IPC and he is sentenced to undergo rigorous
imprisonment for 2 years and to pay a fine of Rs.1,50,000/- under
Section 357 Cr.P.C. As directed in the judgment under appeal, the
sentence of fine shall be distributed amongst the victims of the 15
children who died in the tragic accident. If the sentence of fine
imposed as above is not paid, the accused shall, in default, undergo
simple imprisonment for a further 6 months.
38. The criminal appeal is thus allowed in part.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
Order under Section 357A Cr.P.C.
39. Immediately after the judgment was delivered, the learned
counsel appearing for additional respondents 2 and 3 submitted that
the compensation directed to be paid is too meagre an amount and
the same does not serve any purpose as a measure of rehabilitation.
He pleaded for a recommendation as contemplated under Section
357 A (3) of the Cr.P.C.
40. The learned counsel for the appellant as well as the
learned Public Prosecutor opposed the recording of any
recommendation.
41. Even though, I am of the view that the compensation
directed to be paid as per this judgment, is not adequate as a
measure of rehabilitation to the victims, it is a matter which requires
consideration of various aspects. The question whether the scheme
itself is applicable to the victims in the instant case, whether any
compensation was paid earlier to the victims and also as to whether
the victims are entitled to be rehabilitated as contemplated under the
provision are matters which require a detailed consideration.
42. While finding that the compensation awarded by this
judgment is not adequate, I leave open the above stated questions
for consideration by the State Legal Services Authority and grant
liberty to the victims in this case to initiate appropriate
proceedings/applications for obtaining benefit under Section 357A of
the Cr.P.C., in accordance with law and if otherwise entitled to as per
the provision. If any such application is preferred by the victims of
the tragedy before the State Legal Services Authority, the said
Authority shall consider the same in accordance with law, after
considering the questions mentioned above and after hearing the
necessary parties.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
/True Copy/ PS to Judge
