Kerala High Court
Binish vs State Of Kerala on 2 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
CRL.A NO. 623 OF 2008
AGAINST THE JUDGMENT DATED 27.2.2008 IN SC 275/2007 OF VI
ADDITIONAL SESSIONS COURT, ERNAKULAM
CP 16/2007 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE,
ERNAKULAM
APPELLANT/ACCUSED:
BINISH, S/O BABU, SOBHAVILASAM HOUSE, MARKET ROAD,
VADUTHALA DESOM,, CHITTOOR, CHERANALLOOR VILLAGE.
BY ADV SRI.S.NIRMAL KUMAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY C.I. OF POLICE,ERNAKULAM TOWN SOUTH POLICE
STATION IN, CRIME 9/2006 OF ERNAKULAM TOWN SOUTH
POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PP SRI.SANAL P. RAJ
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
02.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.A.No.623/2008
-:2:-
JUDGMENT
Dated this the 2nd day of November, 2021
This appeal has been filed by the accused under Section
374(2) of Cr.P.C. against the judgment of conviction and
sentence passed by the VI Additional Sessions Judge, Ernakulam
(for short, 'the court below') in S.C.No.275/2007 dated
27.2.2008.
2. The accused faced trial for the offence punishable
under Section 304 of IPC.
3. The prosecution case in short is that on 6.1.2006 at
7.30 pm, the accused who was the driver of KL-7/J 6930 state
carriage bus took it abruptly from the bus stop situated near
Kundannoor Junction with knowledge that his act may cause
death of persons entering into the bus and, one Gopalan entering
into the bus through the front door fell down and the bus ran
through his pelvis and left lower limb and he died due to the
injuries sustained, thereby committed the offence.
4. On receipt of the summons, the accused appeared at
Crl.A.No.623/2008
the court below. After hearing both sides, charge under Section
304 of IPC was framed against the accused. The charge was
read over and explained to the accused who pleaded not guilty.
5. The prosecution examined PW1 to PW19 and marked
Exts.P1 to P13. The accused was questioned under Section 313
of Cr.P.C. He denied all the incriminating circumstances brought
against him during evidence. On the side of the defence DW1
and DW2 were examined.
6. Considering the evidence on record, the court below
found the accused guilty under Section 304 of IPC and sentenced
him to undergo simple imprisonment for a period of 2 years and
to pay a fine of `15,000/-, in default to suffer simple
imprisonment for a period of 6 months. Aggrieved by the said
conviction and sentence, the accused preferred this appeal.
7. I have heard Sri.S. Nirmal Kumar, the learned counsel
for the appellant and Sri. Sanal P. Raj, the learned Public
Prosecutor.
8. The learned counsel for the appellant impeached the
finding of the court below on appreciation of evidence and the
Crl.A.No.623/2008
resultant finding as to the guilt. The learned counsel submits
that the identity of the accused was not proved by the
prosecution. The learned counsel further submitted that the
version given by the occurrence witnesses was not consistent
and unanimous. The learned counsel added that at any rate, the
ingredients of Section 304 of IPC are not attracted. The learned
Prosecutor, on the other hand, supported the findings and verdict
handed down by the court below and argued that necessary
ingredients of Section 304 of IPC had been established and the
prosecution had succeeded in proving the case beyond
reasonable doubt.
9. PW1 to PW5 are the occurrence witnesses. PW1 and
PW2 did not support the prosecution. PW3 to PW5 supported the
prosecution. The prosecution mainly relied on their evidence to
prove the incident and to fix the culpability on the accused. The
death of Gopalan on 6.1.2006 as a result of the incident is not in
dispute. Similarly, the fact that the accused was the driver at
the time of the incident is also not in dispute. The evidence
given by PW3 to PW5 would show that the incident happened
Crl.A.No.623/2008
when the victim attempted to enter into the bus which was
stopped at the bus stop. According to the prosecution, at that
time, the accused who was the driver suddenly took the bus
forward without any warning and the victim fell down and the left
back wheel of the bus ran over his body. There is nothing to
disbelieve the version given by PW1 to PW3 in this regard. Thus,
the prosecution has succeeded in proving to the extent that while
the victim was entering into the bus which was stopped at the
bus stop at Kundannoor Junction, the accused took the bus
ahead, thereby Gopalan fell down and the left back wheel of the
bus ran over his body. No doubt, the said act of the accused is a
negligent act attracting Section 304-A of IPC. But, the crucial
question is whether Section 304 of IPC is attracted or not.
10. The court below on appreciation of evidence found
that the evidence on record would establish that while the
accused took the bus forward, he had requisite knowledge that a
passenger when entering into the bus may fell down and sustain
injury. The said finding of the court below has been seriously
assailed by the learned counsel for the appellant.
Crl.A.No.623/2008
11. Initially, FIR was registered under Sections 279 and
304 of IPC on the basis of Ext.P1 FIS given by PW1, the City
Traffic Police. After the incident, the case was referred to
Panangad Police. PW18 re-registered the crime under Section
304 of IPC. In order to attract Section 304 of IPC, it has to be
established that the act by which the death is caused is done
with the intention of causing death or causing such bodily injury
as is likely to cause death. A perusal of the evidence of the
occurrence witnesses as well as the conductor who was examined
as PW8 would show that the accident was caused as a result of
rash and negligent act by the accused without any intention or
knowledge that the act in all probability will cause death. PW3 to
PW5 who are the occurrence witnesses consistently gave
evidence that they saw deceased Gopalan entering into the bus,
immediately, the bus took forward and Gopalan fell down and the
back wheel of the bus ran over him. None of them deposed that
the driver was in a position to know that Gopalan was entering
into the bus. There is also no evidence to show that the driver
took the bus forward without giving signal by the conductor.
Crl.A.No.623/2008
PW8 is the conductor. He gave evidence that when the bus just
moved from the bus stand, the deceased attempted to enter into
the bus and he fell down and sustained injuries. Apart from this,
there is no piece of evidence to substantiate the prosecution case
under Section 304 of IPC. In short, there is absolutely nothing to
show that there was either intention or knowledge of causing
death or causing such bodily injury as is likely to cause death on
the part of the accused. In these circumstances, I hold that the
offence under Section 304 of IPC is not attracted.
12. The offence under Section 304 and 304-A of IPC are
independent offences. Section 304-A is not a minor offence
constituting only some of the several particulars necessary for
constituting offence under Section 304 of IPC. On the other
hand, the particulars of offence under Section 304 of IPC will
exclude offence under Section 304-A of IPC. [See Vijayan V.
State of Kerala (1991 (1) KLT 325)]. Hence, the appellant
cannot be convicted under Section 304-A of IPC as well.
For the reasons stated above, I am of the view that the
conviction and sentence passed by the court below cannot be
Crl.A.No.623/2008
sustained. The appellant is found not guilty of the offence
charged against him and he is acquitted. The conviction and
sentence vide the impugned judgment are set aside. The bail
bond of the accused is cancelled. The criminal appeal stands
allowed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp True copy
P.A. To Judge
