Byju, S/O. Many vs The State Of Kerala
2025 Latest Caselaw 378 Ker

Kerala High Court

Byju, S/O. Many vs The State Of Kerala on 5 June, 2025

                                                              2025:KER:39765

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

        THURSDAY, THE 5TH DAY OF JUNE 2025 / 15TH JYAISHTA, 1947

                          CRL.A NO. 145 OF 2014

           CRIME NO.712/2006 OF OLLUR POLICE STATION, THRISSUR

  AGAINST THE JUDGMENT DATED 10.02.2014 IN S.C. NO.1234 OF 2008 ON THE

 FILES OF THE ADDITIONAL DISTRICT COURT & SESSIONS COURT -IV, THRISSUR


APPELLANT/ACCUSED:

           BYJU, S/O. MANY
           PURCHENPATTA HOUSE, MARIKULAMBU, KOODALLUR P.O.,
           PALAKKAD DISTRICT.

           BY ADVS.
           SMT.DAISY A.PHILIPOSE
           SRI.JAI GEORGE



RESPONDENT/COMPLAINANT/STATE:

           THE STATE OF KERALA
           REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
           ERNAKULAM.



     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05.06.2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                            2025:KER:39765
Crl.A. No. 145 of 2014
                                  2



                                                            "C.R"
                           JUDGMENT

Dated this the 5th day of June, 2025

The accused in S.C. No.1234/2008 on the files of

the IV Additional Sessions Court, Thrissur, has filed this

appeal, under Section 374(2) of the Code of Criminal

Procedure, 1973, challenging the conviction and sentence

imposed by the Additional Sessions Judge as per the

judgment dated 10.02.2014. The State of Kerala,

represented by the Public Prosecutor is arrayed as the sole

respondent herein.

2. Heard the learned counsel for the appellant and

the learned Public Prosecutor, in detail. Perused the verdict

under challenge and the records of the trial court.

3. Parties in this appeal shall be referred as

'accused' and 'prosecution', hereafter.

4. The prosecution case is that, at about 1.40 p.m.

on 27.12.2006, the accused had driven a mini lorry bearing

registration No.KL-11-K-7346, with knowledge that, if the

mini lorry so driven carelessly, it would cause death of 2025:KER:39765

human beings on the road. The further allegation is that,

while driving so, when the mini lorry reached NH-47 Bypass

Road from south to north, near Ramco Cement Godown at

Marathakkara, the same dashed against a motorcycle

bearing registration No.KL-8-S-5055, driven by one Davis

along with one Paul as pillion rider. As a result of the hit,

both the rider and the pillion rider of the motorcycle were

thrown away and they sustained injuries. Thereafter, they

died in consequence of the accidental injuries. On the said

basis, the prosecution alleges commission of the offence

punishable under Section 304 of IPC, by the accused.

5. After completing investigation, Final Report was

filed alleging commission of the offence punishable under

Section 304 of the IPC, by the accused. On getting

committal of the case, the learned Sessions Judge, Thrissur,

made over the same to the Additional Sessions Judge for

trial and disposal. During trial, PWs 1 to 15 were examined

and Exts.P1 to 22 were marked on the side of the

prosecution. After questioning the accused under Section

313(1)(b) of Cr.P.C, Exts.D1 and D2 were marked on the 2025:KER:39765

side of accused as defence evidence.

6. On analysis of evidence, the learned Additional

Sessions Judge found that the accused committed the

offence punishable under Section 304 of IPC and

accordingly, he was convicted for the said offence and

sentenced to undergo imprisonment for five years and to

pay fine of Rs.20,000/-. In default of payment of fine, six

months default imprisonment was also imposed.

7. While challenging the legality of the verdict of

the trial court, it is pointed out by the learned counsel for

the accused/appellant that, in this case, the prosecution

failed to adduce evidence to substantiate that, the mini

lorry bearing registration No.KL-11-K-7346 was driven by

the accused, at the time of occurrence and he hit down the

motorcycle as alleged by the prosecution. Further,

witnesses cited by the prosecution failed to identify the

accused as the driver, who had driven the lorry at the time

of accident. Despite these facts and in the absence of

material evidence to show the complicity of the accused,

the trial court wrongly convicted and sentenced the 2025:KER:39765

accused. Therefore, the verdict of the trial court would

require interference.

8. Dispelling the argument of the learned counsel

for the appellant/accused, the learned Public Prosecutor

argued that, the evidence of PW3, the owner of the vehicle,

to whom Ext.P5 Goods carrier record was issued from the

milk company, when the vehicle started with milk for

supply, showing the name of the accused as the driver on

the date of occurrence, proved the fact that the lorry was

driven by the accused at the time of occurrence. Thus,

Ext.P5 supported by the evidence of PW1 would show the

guilt of the accused. Therefore, the trial court rightly

convicted and sentenced the accused and the said

conviction and sentence do not require any interference.

9. In view of the rival submissions, the questions

arise for consideration are:

1. Whether the trial court is justified in finding that the accused/appellant committed the offence punishable under Section 304 of the IPC?

2. Whether the verdict of the trial court would require interference?

3. Order to be passed?

2025:KER:39765

10. In order to address the arguments, I have gone

through the evidence available in this matter. PW1, who did

not witness the occurrence, informed the Police regarding

the occurrence. On recording his statement as Ext.P1, FIR

was registered. During chief-examination, PW1 supported

recording of Ext.P1 and also deposed during cross-

examination that he did not witness the accident. PW2 was

cited by the prosecution to prove the occurrence. During

chief-examination, he deposed that while he was working in

lorry booking office by name SM Transports at Bypass in

Marathakkara, he witnessed a mini lorry hitting against a

motorcycle, though he did not remember the date and he

deposed further that the same was at noon. According to

him, he had taken the injured persons to Elite Mission

Hospital, Thrissur. But, PW2 did not identify the accused as

the driver of the mini lorry and he did not state anything

regarding any overt acts at the instance of the accused.

Accordingly, he was declared hostile to the prosecution and

the portions of his previous statements denied by him got

marked as Exts.P2 to P4.

2025:KER:39765

11. During chief-examination of PW3, who is the

owner of mini lorry bearing registration No.KL-11-K-7346

alleged to be involved in the accident, admitted the

ownership of the lorry and deposed the name of the drivers

of the lorry as Suresh and Santhosh. He deposed that he

did not know the accused. Ext.P5 is the goods carriage

record issued from KS Milk company to transport the milk

carried in the mini lorry on the date of occurrence.

Regarding Ext.P5, PW3 admitted that his name and address

are shown in Ext.P5 and the vehicle started at 1.30 pm on

27.12.2006 for milk supply. He also admitted that, as per

Ext.P5 the name of the driver of the lorry is stated as Byju,

but he did not know whether he was the driver, who drove

the lorry on the date of occurrence, as alleged by the

prosecution. He also admitted release of the vehicle on

executing Ext.P6 kachit. Ext.P7 is the scene mahazar and

the signature in Ext.P7 was admitted by PW4, a resident in

Marathakkara, when it was shown to him. He also denied

his previous statement that he had taken the driver of mini

lorry along with others and the said portion is marked as 2025:KER:39765

Ext.P8. PW5, another independent witness turned hostile

to the prosecution and he had deposed that he did not

know the accused and he did not see the alleged incident.

PW6 cited to prove Ext.P7 scene mahazar, given evidence

that his signature was not there in Ext.P7. Ext.P10 is the

inquest report of deceased Paul prepared by PW7 and

Ext.P11 is the inquest report of the deceased Davis

prepared by PW8. PW9 is the doctor who conducted

autopsy on the body of deceased Paul and Davis. He opined

that the accidental injuries caused the death of Paul and

Davis. Ext.P14 is the location sketch proved through PW10,

then Village Officer, Edakunni. Ext.P15 is the report of the

Motor Vehicle Inspector, RT Office, Thrissur pertaining to

mini lorry bearing registration No.KL-11-K-7346, which

would show that there was no mechanical defects to the

lorry. PW12, the Assistant Sub Inspector, Ollur Police

Station, deposed supporting Ext.P10 report. Ext.P1 first

information statement was recorded by PW13, the Head

Constable in charge of Ollur Police Station as on

28.12.2006. PW14 deposed about Ext.P11 inquest report.

2025:KER:39765

PW15 is the investigating Officer and he deposed about the

investigation he had done.

12. Section 304 of IPC deals with punishment for

culpable homicide not amounting to murder and the

offence is defined under Section 299 of IPC. Section 299 of

IPC provides as under:

299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Explanation 1.--A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.

Explanation 2.--Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.

Explanation 3.--The causing of the death of 2025:KER:39765

a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.

13. Thus, in a prosecution alleging offence

punishable under Section 304 of IPC, defined under Section

299 of IPC, the prosecution has the duty to prove that the

accused has done an act/acts with intention to cause death,

or with the intention to cause such bodily injury as is likely

to cause death, or with the knowledge that he is likely by

such act to cause death. In addition to that, the prosecution

has the duty to prove beyond reasonable doubt that the

said act/acts was/were done by the accused. Mere

reference in a document or somewhere that it was the

accused, who had driven the vehicle, which resulted in the

accident involving death of human beings, would not

suffice this requirement. To put it more vividly, in cases

where the offence under Section 304 of IPC is alleged, on

the ground that the driver of the vehicle carelessly driven

the vehicle and caused death of human beings, there must 2025:KER:39765

be convincing evidence to show that the accused driven the

vehicle at the time of occurrence, in a manner so as to

endanger human life and which resulted in the death of

human being, with exact identity of the accused.

14. In this case, even though, the accident and

consequential death of two persons proved in this case, the

same is not sufficient to hold that it was the accused, who

had done the overt acts. In the instant case, all

independent witnesses cited by the prosecution to prove

the occurrence, turned hostile. Apart from Ext.P5, there is

nothing available to show that the accused was the driver

of the vehicle at the time of occurrence. Regarding Ext.P5,

PW3, the owner of the vehicle deposed that, the accused

was not the driver of the vehicle. If the evidence given by

PW3, denying the accused as the driver of the vehicle is

discarded as against Ext.P5, then also the prosecution has

the duty to prove that at the time of occurrence, the

accused himself was driving the vehicle. Insofar as these

material aspects are concerned, there is no evidence

forthcoming. Despite that, the learned Additional

Sessions Judge entered into conviction, on the 2025:KER:39765

finding that a driver is bound to abide the traffic rules and if

there is violation of the same, it is the duty of the driver to

explain it, since the same is within his exclusive knowledge.

15. In the instant case, in fact, there is no evidence

to show that it was the accused who had driven the vehicle

at the time of accident and nobody identified the accused

as the person who drove the vehicle. In such a case, the

learned Additional Sessions Judge, without properly

appreciating the evidence wrongly entered into conviction

and consequential sentence. Thus, I am of the view that, the

conviction and sentence imposed by the trial court against

the accused/appellant are liable to be set aside.

16. In the result, the appeal succeeds and is allowed.

Conviction and sentence imposed by the trial court against

the appellant/ accused are set aside. Consequently, the

appellant/accused is acquitted for the offence under Section

304 of the IPC. The bail bond executed by the

appellant/accused shall stand cancelled. He is set at liberty

forthwith.

Amount, if any, being part of the fine deposited by the

appellant/accused by order of this Court shall be refunded to 2025:KER:39765

him, in accordance with the procedure established by law.

Sd/-

A. BADHARUDEEN SK JUDGE