Abdul Ansar, S/O. Muhammed Kunju vs State Of Kerala
2022 Latest Caselaw 6979 Ker

                                                           "C.R."

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
          THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
                     CRL.A NO. 913 OF 2006
 AGAINST THE JUDGMENT DATED 28.04.2006 IN SC 32/2006 OF
    THE ADDITIONAL DISTRICT COURT (ADHOC)-I, KOTTAYAM
 (CP 29/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I,
                           ETTUMANOOR)
APPELLANT/2ND ACCUSED:

            ABDUL ANSAR, S/O. MUHAMMED KUNJU,
            NOORJAMALIA HOUSE, KIZHAKKUMBHAGOM KARA,
            ETTUMANOOR VILLAGE.
            BY ADV NANDAGOPAL S.KURUP


RESPONDENT/COMPLAINANT:

            STATE OF KERALA
            REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA,, ERNAKULAM.
            SRI SANAL P. RAJ - P.P


OTHER PRESENT:




     THIS      CRIMINAL   APPEAL   HAVING    COME   UP   FOR   FINAL
HEARING   ON    03.06.2022,   ALONG   WITH   CRL.A.915/2006,     THE
COURT ON 17.06.2022 DELIVERED THE FOLLOWING:
                                    2
Crl.Appeal Nos.913 & 915 of 2006




          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
          THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
                      CRL.A NO. 915 OF 2006
 AGAINST THE JUDGMENT DATED 28.04.2006 IN SC 32/2006 OF
    THE ADDITIONAL DISTRICT COURT (ADHOC)-I, KOTTAYAM
 (CP 29/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I,
                            ETTUMANOOR)
APPELLANT/3RD ACCUSED:

             BENNY, S/O. IYPE,
             KAKKOOR HOUSE, AMBANATTU BHAGOM, PERROR KARA,
             PERROR VILLAGE.
             BY ADV SRI.JOBI JOSE KONDODY


RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
             COURT OF KERALA, ERNAKULAM.
             BY SRI SANAL P. RAJ - P.P


      THIS     CRIMINAL   APPEAL       HAVING   COME   UP   FOR   FINAL
HEARING   ON    03.06.2022,   ALONG      WITH   CRL.A.913/2006,     THE
COURT ON 17.06.2022 DELIVERED THE FOLLOWING:
                                     3
Crl.Appeal Nos.913 & 915 of 2006


                                                               "C.R."

                            JUDGMENT

Challenge in these appeals is to the judgment of conviction

and order of sentence dated 28.04.2006 passed by the

Additional Sessions Judge (Ad hoc)-I, Kottayam in S.C.No.32 of

2006. The appellants were found guilty and convicted for the

offence punishable under Section 308 read with Section 34 of

the Indian Penal Code, 1860. They were sentenced to undergo

rigorous imprisonment for a period of four years and to pay a

fine of Rs.5,000/- with a default sentence of rigorous

imprisonment of six months. The amount of fine, if realised, was

directed to be paid to the injured, PW1, as compensation under

Section 357(1) of the Code of Criminal Procedure, 1973.

2. In these appeals, filed under Section 374(2) of the

Code, the conviction and sentence of the appellants are

impugned on the ground that without there having any evidence

regarding the way in which the incident occurred and also the

identity of the appellants, the trial court has convicted and

sentenced them and thereby committed illegality.

Crl.Appeal Nos.913 & 915 of 2006

3. There were three accused in the case. The 1 st

accused was acquitted of all the charges. The 2 nd accused and

3rd accused, who are convicted, filed Crl.Appeal No.913 of

2006 and Crl.Appeal No.915 of 2006 respectively. Both the

appeals having arisen from the same judgment, are disposed

of by this common judgment. The appellants are referred to

as the 2nd accused and 3rd accused for convenience.

4. The case of the prosecution, in brief, is as follows:

The 1st accused was the driver of a stage carriage bus bearing

Reg.No.KL-5-S-3324. The 2nd accused was the conductor and

the 3rd accused was the cleaner of that bus. On 18.08.2005 at

or about 9.00 a.m., the bus on its trip from Ettumanoor to

Kottayam, stopped at the bus stop at Karithas Junction for

alighting and boarding passengers. While PW1 was boarding

the bus, the 2nd accused gave the signal by ringing the bell

and the 1st accused moved the bus forward. The 3 rd accused

obstructed PW1 from entering the bus. When the bus moved

forward, PW1 who was entering the bus, lost her grip and fell

down from the foot-board causing to ran over her body the

Crl.Appeal Nos.913 & 915 of 2006

rear wheel of the bus. She thereby sustained serious injuries.

It is further alleged that the accused had the knowledge that

by their acts there was every likelihood of causing death of

the passengers, who were trying to board the bus.

5. The injured, PW1, was removed to the nearby

Matha Hospital and thereafter to the Medical College Hospital,

Kottayam, where she was treated as an inpatient. PW2,

another passenger waiting for the bus in the same bus stop,

accompanied PW1. The police on receipt of intimation

proceeded to the Medical College Hospital and on finding PW1

unconscious, recorded the statement of PW2. PW13 thereafter

registered crime No.362/2005 of Ettumanoor Police Station.

PW14 conducted the investigation and submitted a final

report.

6. PWs.1 to 13 were examined and Exts.P1 to P17

were marked on the side of the prosecution. On the close of

the prosecution evidence, the accused were examined as

provided in Section 313(1)(b) of the Code. They denied the

incriminating circumstances in evidence, which were put to

Crl.Appeal Nos.913 & 915 of 2006

them. All of them denied their involvement in the incident and

thereby put forth a defence of total denial. No defence

evidence was let in.

7. Heard the learned counsel appearing for the

appellants and also the learned Public Prosecutor.

8. The learned counsel appearing for the appellants

would contend that the evidence let in by the prosecution was

totally insufficient to prove the involvement of either of the

appellants in the incident. Both the learned counsel did not

deny the occurrence of the incident. Their contention is that

identity of the appellants was not proved by reliable evidence

and the trial court acting upon unreliable evidence and

surmises entered into a finding that the 2nd accused was the

conductor and 3rd accused was the cleaner at the time of

occurrence and they were responsible for PW1 falling down

from the bus.

9. The learned counsel for the 2nd accused very

passionately contended that this is a case of mere accident,

which unfortunately resulted in injuries to a minor girl. It

Crl.Appeal Nos.913 & 915 of 2006

cannot be an attempt to commit culpable homicide; since the

appellants could never have knowledge that the act would

likely to have caused the death of PW1. He also contended

that such an act at the best amounts to the negligence of

nature, which may attract Section 338 of the I.P.C.

10. Per contra, the learned Public Prosecutor iterated

that the appellants were rightly convicted under Section 308

of the I.P.C. as the evidence on record does prove the offence.

It is submitted that the prosecution has proved that only

because the 2nd accused-conductor rang the bell and the 3 rd

accused-cleaner failed to ensure that no passenger was

boarding while the bus was on the move the incident

occurred. Thus, their act and the illegal omission amounted to

the offence that is punishable under Section 308 of the I.P.C.

11. The questions that arise for consideration are,-

i) Were the 2nd accused the conductor and the 3rd accused

cleaner in the bus bearing Reg.No.KL-5-S-3244 at the

time of occurrence?

ii) Did the acts or omissions on the part of accused Nos.2

Crl.Appeal Nos.913 & 915 of 2006

and 3 result sustaining of injuries by PW1?

iii) Did they have intention or knowledge that their acts

would amount to culpable homicide, had death of PW1

resulted thereby?

12. The charge for an offence under Section 279 of the

I.P.C. was framed against the 1 st accused driver. Since he was

acquitted, that question does not arise for consideration. The

definite allegation against the 2 nd accused is that without

ensuring that no passenger has been mounting the bus, he

rang the bell thereby giving signal to the driver to proceed.

Thereupon, the bus was taken ahead resulting PW1, who was

in the course of stepping into the bus, fell down and the rear

back tyre of the bus ran over her body.

13. The 3rd accused was the cleaner on the bus. He was

standing on the foot-board of the bus. The allegation against

him is that he pushed PW2 aside, resulting in her falling

down. In order to prove the said allegations, apart from the

evidence of PW1, the injured, PW2 and PW7 is also relied on

by the prosecution. PWs.3, 4, 5, 6 and 8 are also occurrence

Crl.Appeal Nos.913 & 915 of 2006

witnesses, but none of them supported fully the case of the

prosecution.

14. PW1 deposed that while she was trying to board

the bus, it moved ahead, and therefore, she lost grip from the

handle and fell down. She had already placed one foot on the

foot-board. However, as a result of the sudden movement of

the bus ahead, she could not enter inside. Instead, she fell

down and the rear wheel of the bus ran over her body.

15. PW2 is a teacher in the school where PW1 and PW7

are studying. She deposed that she was waiting in the bus

stop while PW1 and 7 were boarding 'Ponmankal' bus, which

is involved in the incident. Since there was a rush in the bus,

she waited for the next one. She saw PW7 boarding the bus

and behind her as the third passenger, PW1 tried to board the

bus. Before she could enter inside, the bell was rung. The bus

was moved forward. PW1 lost her grip over the handle and fell

down. PW1 would state that immediately the bus was

stopped, and therefore, the rear left wheel of the bus partly

only ran over the body of PW1. Since the people made a hue

Crl.Appeal Nos.913 & 915 of 2006

and cry, the bus was stopped and moved back. People

immediately took PW1 and carried to the nearby Matha

Hospital, where she reached in an autorickshaw. After first

aid, PW1 was taken to the Medical College Hospital, Kottayam,

where also PW2 accompanied. At the hospital, her statement

was recorded by PW13. Ext.P2 is her statement. On the basis

of Ext.P2, PW13 had registered the crime as per Ext.P14 F.I.R.

16. PW7 is the sister of PW1. She was inside the bus

when PW1 fell down. PW7 deposed that following her, two

more girls entered the bus, and while PW1 was trying to

board, the bus was moved ahead. She added, it was the 2 nd

accused, the conductor, who rang the bell saying another bus

was trying to overtake. Although PW7 did not see PW1 falling

down, hearing the hue and cry and sudden stoppage of the

bus she realised what had happened. PW7 also stated that in

its attempt to go ahead of another bus coming behind, the 2 nd

accused hurried by ringing the bell and that resulted PW1

falling down. PW7 identified both the 2 nd accused and the 3rd

accused as the conductor and cleaner respectively. She also

Crl.Appeal Nos.913 & 915 of 2006

identified the 1st accused as the driver of the bus. PWs.3, 4, 5,

6 and 8 deposed in court acknowledging that there occurred

such an incident, but denying witnessing the incident of PW1

falling down from the bus. They were allowed to be cross-

examined by the learned Public Prosecutor. But no evidence

with regard to the occurrence, the way in which it occured or

the identity of the accused persons could be elicited from

them. Therefore, evidence of these witnesses does not render

much help to the prosecution.

17. Immediately after the incident, PW1 was taken to a

nearby hospital. Ext.P11 is the certificate issued by Dr.Ciby,

PW10 who examined PW1 at that hospital. He noticed the

following injuries on the body of PW1,-

(1) Blunt injury left side chest;

(2) Blunt injury abdomen;

(3) Multiple abrasion left hand, left side, chest, left side abdomen, left thigh and left leg;

(4) Contusion pelvic area and left side chest; and (5) Patient is in shock.

While PW1 was subsequently taken to the Medical College,

Hospital, Kottayam, she was attended to by PW11, Dr. Manoj

Crl.Appeal Nos.913 & 915 of 2006

Kumar. After necessary examination, PW11 issued Ext.P12

discharge certificate. The injuries noted in Ext.P12 are the

following:

(1) Diaphragmatic injury;

(2) Splenic laceration;

(3) Serosal tear of sigmoid colon; and (4) Retroperitoneal haematoma.

18. PW11 further deposed that those injuries sustained

by PW1 were serious in nature and in the ordinary course would

result death of the person, if not treated properly. Evidence of

PWs.10 and 11 is not seriously challenged. The accused did not

contest also that PW1 fell down from the bus and had sustained

injuries. The versions of PWs.1, 2 and 7 in this respect is

consistent and remain unimpeached. In the said circumstances,

I hold that PW1 fell down from the bus bearing No.KL-5-S-3324

at or about 9.00 a.m. on 08.08.2005 at the bus stop at Karithas

Junction, whereby she sustained serious injuries, which would

have resulted her death, if not treated timely.

19. The prosecution alleges that the 2 nd accused rang

the bell to hurry up the trip without ensuring that nobody was

Crl.Appeal Nos.913 & 915 of 2006

boarding the bus, the 3rd accused pushed PW1 aside to avoid

her entering the moving bus. Accused 2 and 3 would contend

that they did not involve in the incident and further that as

PW1 tried to board the moving bus, the untoward incident

occurred.

20. The learned counsel appearing for both the

appellants draw my attention to the oral testimony of PWs.1

and 7 to the effect that they were in a hurry to go to the

school and having PW7 already entered the bus and her bus

fare was with PW1, she tried to capture the moving bus.

PWs.1 and 7 are sisters studying in in S.H.Bhavans School,

Kottayam. They admitted that PW7 had to reach school early,

so she insisted on boarding the 'Ponmankal' bus itself, despite

PW1 telling her to wait for the next bus. They also stated that

the bus fare was with PW1 and as PW7 had already boarded

the bus, PW1 was compelled to board the same bus. In front

of her, two more girl students entered the bus and behind

them PW1 was trying to mount the bus. At that time, the bus

moved ahead.

Crl.Appeal Nos.913 & 915 of 2006

21. Can accused Nos. 2 and 3 escape the liability by

saying that PW1 hurried up and that was the cause. Section

29(2) of the Motor Vehicle Act, 1988, empowers State

Governments to prescribe the conditions subject to which a

conductor can be given licence. In the Kerala Motor Vehicles

Rules, 1989, framed in exercise of the said power, conduct

and functions of a conductor are enumerated. It is the duty of

the conductor of every stage carriage to act responsibly. As

per Rule 89(o) of the Rules, a conductor of a stage carriage,

while on duty, shall not interfere with the persons mounting

the vehicle. It shows that a conductor has a statutory duty to

ensure safety of the passengers and not to interfere with the

persons mounting the vehicle. Therefore, the 2nd accused had

a bounden duty before ringing the bell thereby giving signal to

the driver to proceed to ensure that the foot-board was clear

and the door is closed. In this case, the 3 rd accused was also

allegedly standing in the foot-board. The purpose of

employing a cleaner in a stage carriage is undoubtedly to

ensure the safety of the passengers, who are boarding and

Crl.Appeal Nos.913 & 915 of 2006

alighting the bus. Therefore, it was his duty also to see that

the bus is not moved ahead with any passenger on the foot-

board or before the door is cleared.

22. Pointing out a few contradictions in their evidence,

the oral testimonies of PWs.1, 2 and 7 were sought to be

rejected as unreliable. Ext.P1 is a contradiction in the

evidence of PW1. Ext.P7 is a contradiction brought out during

the examination of PW7. As regards the essential fact that

PW1 after stepping in on the foot-board that the bus had

suddenly moved ahead resulting in her falling down and that

the conductor had rung the bell, there is absolutely no

contradiction or inconsistency. PWs.2 and 7 categorically

stated that it was the 2nd accused, who rang the bell. PW2 is a

school teacher going by bus regularly. She often go in the bus

in question. Immediately after the incident, the bus stopped

and the crew members came out. PW7 also came out. It

cannot be said that they did not have any opportunity to see

the conductor of the bus at the time of occurrence. In such

circumstances their identification of accused No.2 before the

Crl.Appeal Nos.913 & 915 of 2006

court cannot be found anyway faulty.

23. The prosecution also relied on the evidence of PW9,

as also the kychit given by her in police, Ext.P10, to prove the

identity. PW9 was the owner of the bus. She stated that

accused Nos. 1, 2 and 3 were driver, conductor and cleaner

respectively in the bus on the date of occurrence. She

admitted having given such a document, but she added that

under the compulsion of the police, she gave that document

and her intention was only to get the bus released. Thus, she

maintained that she could not vouch for the correctness of the

statements in Ext.P10. Whether or not the contents of it are

correct, its evidentiary value is the question. The statement in

Ext.P10, though it is written, is a statement given to the

investigating officer during the course of investigation. It is,

therefore, a statement under Section 161 of the Code. In the

light of the bar contained in Section 162 of the Code, the

contents of Ext.P10, even on treating it as a declaration under

Section 133 of the Motor Vehicles Act can be used only to

contradict the witness, and not for any other purpose.

Crl.Appeal Nos.913 & 915 of 2006

Therefore, the contents of Ext.P10 cannot be used as a

substantive or corroborative evidence. Leaving that apart, oral

testimony of PW2 and 7 certainly inspires confidence and their

evidence prove beyond doubt the fact that it was the 2 nd

accused, who was the conductor in the bus at the time of

occurrence.

24. Coming to the identity of the 3rd accused, the only

evidence available is the oral testimony of PW7. PWs 1 and 2

did not identify him in court. PW7 was aged 12 years at the

time of examination. She deposed regarding the material

particulars, including the fact that the 'Ponmankal' bus was

running competing with another bus. But regarding the

identification of the 3rd accused, she had explained that except

for the conductor, she could not correctly identify other crew

members of the bus by agreeing to the question that she

knew others only from the news paper. That being the nature

of the evidence, it can only be said that the prosecution failed

to prove that it was the 3 rd accused, who was the cleaner in

the bus at the time of occurrence.

Crl.Appeal Nos.913 & 915 of 2006

25. Based on the discussions made above, I hold that

as a result of the 2nd accused ringing the bell without ensuring

that nobody was boarding the bus, the driver took the bus

ahead and that is the proximate cause of PW1 falling down.

The question then arises is whether the said act amounts to

an offence under Section 308 of the I.P.C. The learned counsel

appearing for the 2nd accused would submit that from the

facts proved, no intention or knowledge that there was

likelihood of causing death of PW1 can be attributed to the 2 nd

accused. It can only be an act of negligence or, at the best

rashness. Accordingly, the learned counsel canvassed for a

position that the conviction of the 2 nd accused for an offence

under Section 308 of the I.P.C. is unsustainable in law.

26. In order to constitute an offence under Section 308

of the I.P.C., facts required to be proved are that the offender

does an act with the intention or knowledge that, under the

circumstances it occurred, if by that act death of the person is

the result, it would be a culpable homicide not amounting to

murder. The Apex Court in Kunwar Pal v. State of

Crl.Appeal Nos.913 & 915 of 2006

Uttarakhand [(2014) 2 SCC 434] held that in order to

constitute a culpable homicide not amounting to murder, the

offender should have the knowledge that his act is likely to

cause death but he had no intention to cause death or such

bodily injury likely to cause death. In Keshub Mahindra v.

State of Madhya Pradesh [(1996) 6 SCC 129], the Apex

Court while drawing distinction between the offences of death

due to negligence and culpable homicide not amounting to

murder, it was observed,-

"A look at Section 304 Part II shows that the concerned accused can be charged under that provision for an offence of culpable homicide not amounting to murder and when being so charged if it is alleged that the act to the concerned accused 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 the charged offences would fall under Section 304 Part II."

If the act was done with the knowledge which is of such a

degree that the likely consequence of the act would be death

or causing such bodily injury as is likely to cause death of a

person, that will constitute an offence of culpable homicide

Crl.Appeal Nos.913 & 915 of 2006

not amounting to murder. Attempt to commit such an act is

what is punishable under Section 308 of the I.P.C.

27. The nature of the incident in the instant case is

that by the bus moving ahead while PW1 was boarding it, she

fell down underneath the bus and its left rear wheel almost

ran over her body, resulting in serious injuries which in the

ordinary course could be fatal. Life of PW1 was saved only

miraculously. Unless the bus could be stopped at that stage

itself, death was imminent.

28. For the falling down of PW1, the 2 nd accused did

not do a positive act other than ringing the bell. Can that be

the causa causans of the alleged offence. Section 32 of the

I.P.C. explains that except where a contrary intention

appears from the context, words which refer to acts done

extend also to illegal omissions. As pointed out above, Rule

89(o) of the Kerala Motor Vehicle Rules casts a duty on the

conductor to ensure safety of the passengers and not to

interfere with the passengers mounting the vehicle. When

that statutory obligation is shirked, that is an illegal omission

Crl.Appeal Nos.913 & 915 of 2006

amounting to an act. Therefore, the cause of PW1 falling down

from the bus has to be attributed to the 2 nd accused and the

same amounts to an act as stated in Section 308 of the I.P.C.

Every prudent man should know if a person falls down from a

moving bus, that would cause fatal injuries to him. If so, a

licensed conductor should have sufficient knowledge about

such a certain consequence while ringing the bell thereby

asking the driver of the bus to move from the bus stop, without

ensuring that no passenger is mounting the bus and the door is

closed. Hence, in answer to point Nos.1 to 3, I hold that the 2 nd

accused has committed an offence punishable under Section

308 of the I.P.C. and the trial court rightly had answered the

question. The contention of the learned counsel that the act

could amount only to an offence punishable under Section 338

of the I.P.C. cannot therefore be accepted. I further hold that

conviction of the 3rd accused is liable to be set aside. The 3 rd

accused is therefore found not guilty of the offence under

Section 308 of the I.P.C. and he is acquitted under Section

386(b) of the Code.

Crl.Appeal Nos.913 & 915 of 2006

29. Coming to the question of sentence, the learned

counsel appearing for the 2 nd accused would submit that the

incident occurred in 2005, and by lapse of 17 years, the

purpose of detaining the 2 nd accused in prison lost its

reformative and even deterrent effect. He accordingly, sought

to avoid imprisonment.

30. Having considered the matter in detail, I am of the

view that in the nature of the offence, it is not just or legal to

avoid imprisonment from the punishment. Taking all aspects

into account, including the age of the 2 nd accused, I am of the

view that the sentence can be modified. The 2 nd accused is

accordingly sentenced to undergo rigorous imprisonment for a

period of one year and to pay a fine of Rs. 50,000/- for

commission of the offence punishable under Section 308 of

the I.P.C. In default of payment of fine, he shall have to

undergo rigorous imprisonment for a further period of 3

months. In the event of realisation of fine, the same shall be

paid to PW1. Set-off, if any, will be allowed.

31. Crl.Appeal No.915 of 2006 is thus allowed.

Crl.Appeal Nos.913 & 915 of 2006

Crl.Appeal No.913 of 2006 is allowed in part by only modifying

the sentence as above.

Sd/-

P.G. AJITHKUMAR, JUDGE

dkr