STATE OF KERALA vs SUDHEER @ SUDHEER KUMAR
- Court
- Kerala High Court
- Decided on
- 02-03-2026
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
ND
MONDAY, THE 2 DAY OF MARCH 2026 / 11TH PHALGUNA, 1947
CRL.A NO. 1556 OF 2007
AGAINST THE JUDGMENT DATED 19.08.2005 IN SC NO.78 OF 2004 OF
ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL COURT, TIRUR
APPELLANT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM. (C.I. OF POLICE, CRIME NO.135/2001
OF THIRURANGADI POLICE STATION).
BY PUBLIC PROSECUTOR SRI VIPIN NARAYAN A
RESPONDENT/ACCUSED:
SUDHEER @ SUDHEERKUMAR
PAYYAPPATTU, S/O.KRISHNADASAN, SHEEBA NILAYAM,
RAMANATTUKARA.
BY ADV SRI.A.KRISHNAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.02.2026,
ALONG WITH Crl.Rev.Pet.674/2018, THE COURT ON 02.03.2026,
DELIVERED THE FOLLOWING:
2026:KER:18602
Crl.Appeal No.1556/2007
& Crl.R.P.No.674/2018 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
ND
MONDAY, THE 2 DAY OF MARCH 2026 / 11TH PHALGUNA, 1947
CRL.REV.PET NO. 674 OF 2018
CRIME NO.135/2001 OF Thirurangadi Police Station, Malappuram
AGAINST THE JUDGMENT DATED 28.02.2018 IN Crl.A NO.362 OF 2005
OF DISTRICT COURT& SESSIONS COURT/RENT CONTROL APPELLATE
AUTHORITY, MANJERI ARISING OUT OF THE JUDGMENT DATED 19.08.2005 IN
SC NO.78 OF 2004 OF ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL
COURT, TIRUR
REVISION PETITIONER/APPELLANT/ACCUSED:
SUDHEER @ SUDHEER KUMAR
S/O. KRISHNADASAN, PAYYAPPATTU SHEEBA NILAYAM,
RAMANATTUKARA, KOZHIKODE DISTRICT.
BY ADVS.
SHRI.P.VENUGOPAL
SMT.T.J.MARIA GORETTI
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, PIN-682031.
(REPRESENTING C.I.OF POLICE, TIRURANGADI-CRIME
NO.135/2001 OF TIRURANGADI POLICE STATION)
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
06.02.2026, ALONG WITH CRL.A.1556/2007, THE COURT ON 02.03.2026
DELIVERED THE FOLLOWING:
“C.R”
A. BADHARUDEEN, J.
================================
Crl.Appeal No.1556 of 2007-B
and
Crl.R.P.No.674 of 2018-D1
================================
nd
Dated this the 2 day of March, 2026
C O M M O N J U D G M E N T / O R D E R
Crl.Appeal No.1556/2007 has been filed by the
State of Kerala challenging the judgment of the Assistant
Sessions Court, Tirur, in S.C.No.78/2004 dated 28.02.2018
whereby the Assistant Sessions Court acquitted the sole
accused of the offence punishable under Section 304(ii) of
the Indian Penal Code (`IPC’ for short hereafter) while
convicting and sentencing him for the offences punishable
under Sections 279, 337, 338 and 304(A) of IPC.
2. During the pendency of this appeal before
this Court, at the instance of the prosecution, the accused,
who had been convicted and sentenced for the offences
punishable under Sections 279, 337, 338 and 304(A) of IPC,
had filed an appeal before the Sessions Court, Manjeri,
4
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
challenging the said conviction and sentence vide
Crl.Appeal No.326/2005. However, regardless of the
pendency of Crl.Appeal No.1556/2007 before this Court, the
learned Sessions Judge dismissed the appeal at the instance
of the accused, as per judgment dated 28.02.2018 in
Crl.Appeal No.326/2005,
3. Crl.R.P.No.674/2018 has been filed
challenging the said verdict.
4. Heard the learned Special Public
Prosecutor appearing for the appellant/State of Kerala in
Crl.Appeal No.1556/2007 and the learned counsel appearing
for the respondent/accused therein. Also heard the learned
counsel for the revision petitioner.
5. I shall refer the parties in this appeal as
well as the revision petition as `prosecution’ and `accused’
for easy reference hereafter.
6. The prosecution case is that the accused,
who was the driver of a stage carriage bus bearing
5
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
Reg.No.KL 11 E 3987, driven the same through Guruvayur-
Tellicherry road along with travellers therein, who were the
pilgrims of Guruvayur temple in a manner with the
knowledge that driving the vehicle in such a manner, would
be fatal to the travellers sitting in the bus and pedestrians
and while driving so he had hit the stage carriage on the
back of an Ambassador car bearing Reg.No.KLL 415, and as
the outcome of the same, the bus got capsized. Out of the
occurrence, 44 persons died though some among the
travellers survived, with serious injuries. This is the base on
which the prosecution alleges commission of the offences
punishable under Sections 279, 337, 338 and 304 Part II of
IPC, by the accused.
7. Upon committal of the case to the Sessions
Court, the Sessions Court made over the case to the
Assistant Sessions Court for trial and disposal. Thereafter
the learned Assistant Sessions Judge proceeded with trial,
PW1 to PW75 were examined and Exts.P1 to P129 were
6
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
marked on the side of the prosecution. Thereafter, an
opportunity was given to the accused to adduce defence
evidence after questioning him under Section 313(1)(b) of
the Code of Criminal Procedure (`Cr.P.C’ for short
hereafter), but no defence evidence was adduced. Finally,
the Assistant Sessions Court found that the accused
committed offences punishable under Sections 279, 337, 338
as well as 304A of IPC, while acquitting the accused for the
offence punishable under Section 304(ii) of IPC.
The prosecution thereafter filed the present
8.
Criminal Appeal No. 1556 of 2007 contending that the Assistant
Sessions Court went wrong in finding that the accused did not
commit the offence punishable under Section 304(ii) of IPC,
when the evidence given by the travellers in the bus clearly
established that the accused had driven the bus with the
knowledge that his act would likely to cause an accident and
the consequential death of the travellers therein. Therefore,
the contention raised by the learned Public Prosecutor is
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Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
that, in the instant case, instead of Section 304A, 304(ii) of
IPC would attract. The learned Public Prosecutor read out
the relevant portions of the depositions of the witnesses and
relied on the crucial materials therein to substantiate the
contentions advanced in this regard.
9. Dispelling these contentions, it is argued
by the learned counsel for the accused that, in the instant
case, even though 44 persons died, it is not safe to reach a
conclusion that the accused committed the offence
punishable under Section 304(ii) of IPC and according to
him, in order to bring home an offence under Section 304(ii)
of IPC, the prosecution must establish the requisite
knowledge on the part of the accused. In this connection,
the learned counsel for the accused placed a decision of this
Court reported in [2025 KHC 595 : 2025 KHC OnLine 595 :
2025 KER 39765 : 2025 KLT OnLine 2107], Byju v. State
of Kerala with reference to paragraph 13, which reads as
under:
8
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
“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 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.”
10. It is pointed out by the learned counsel for
the accused further that mere high speed while driving the
vehicle would not by itself constitute the ingredients to find
commission of the offences punishable under Sections 279,
9
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
337, 338 and 304A of IPC and in the instant case neither
304(ii) of IPC nor the offences under Sections 279, 337, 338
and 304A of IPC would not attract, as the evidence of the
witnesses is confined only to the allegation that the accused
was driving the stage carriage at the relevant time at high
speed or over speed.
11. In this connection, the learned counsel for
the accused placed a decision of the Apex Court in [1998
KHC 1353 : 1998 (8) SCC 493 : 1998 SCC (Cri) 1508],
State of Karnataka v. Satish, wherein paragraphs 4 and 5
are relevant, which are extracted hereunder:
“ 4. Merely because the truck was being driven
at a “high speed” does not bespeak of either “negligence”
or “rashness” by itself. None of the witnesses examined by
the prosecution could give any indication, even
approximately, as to what they meant by “high speed”.
“High speed” is a relative term. It was for the prosecution
to bring on record material to establish as to what it
meant by “high speed” in the facts and circumstances of
the case. In a criminal trial, the burden of providing
everything essential to the establishment of the charge
10
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
against an accused always rests on the prosecution and
there is a presumption of innocence in favour of the
accused until the contrary is proved. Criminality is not to
be presumed, subject of course to some statutory
exceptions. There is no such statutory exception pleaded
in the present case. In the absence of any material on the
record, no presumption of “rashness” or “negligence”
could be drawn by invoking the maxim “res ipsa
loquitur”. There is evidence to show that immediately
before the truck turned turtle, there was a big jerk. It is
not explained as to whether the jerk was because of the
uneven road or mechanical failure. The Motor Vehicle
Inspector who inspected the vehicle had submitted his
report. That report is not forthcoming from the record and
the Inspector was not examined for reasons best known to
the prosecution. This is a serious infirmity and lacuna in
the prosecution case.
5. There being no evidence on the record to
establish “negligence” or “rashness” in driving the truck
on the part of the respondent, it cannot be said that the
view taken by the High Court in acquitting the respondent
is a perverse view. To us it appears that the view of the
High Court, in the facts and circumstances of this case, is
a reasonably possible view. We, therefore, do not find any
reason to interfere with the order of acquittal. The appeal
fails and is dismissed. The respondent is on bail. His bail
bonds shall stand discharged.”
11
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
12. Apart from that, the learned counsel for the
accused placed a decision of this Court reported in [2023 (3)
KHC 221 : 2023 KHC OnLine 324 : 2023 KER 23230 :
2023 (3) KLT 93 : 2023 (2) KLJ 508 : ILR 2023 (2) Ker.
1015 : 2023 LiveLaw (Ker) 188], State of Kerala v.
Sreeram Venkittaraman.
13. While assimilating the rival arguments, the
points arise for consideration are:
(i) Whether the Assistant Sessions Judge went
wrong in finding that the accused did not commit offence
under Section 304(ii) of IPC?
(ii) Whether the Assistant Sessions Judge is
right in finding that the accused committed offences
punishable under Sections 337, 338 and 304A of IPC?
(iii) Do the verdicts impugned would require
interference?
(iv) The order to be passed?
12
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
Points (i) to (iv)
14. As pointed out by the learned counsel on
both sides, in this case, the prosecution asserts commission
of the offences punishable under Section 304(ii) as well as
under Sections 279, 337 and 338 of IPC, by the accused.
The evidence of PW1, PW5 to PW17, who were the
passengers of the stage carriage as well as PW2, a person
residing near the place of occurrence were given much
emphasis to substantiate the prosecution case. Apart from
the evidence of the occurrence witnesses, the prosecution
has given heavy reliance on the evidence of PW70, the
Regional Transport Officer, who prepared Ext.P113 report
regarding the condition of the vehicle after the accident.
15. On scrutiny of the judgment under
challenge along with the arguments tendered, it is relevant to
note that PW4 to PW6, PW14 to PW17 along with the
evidence of PW70 were relied upon by the Assistant
Sessions Judge to enter into the finding that the accused did
13
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
not commit the offence punishable under Section 304(ii) of
IPC, instead he had committed the offences punishable
under Sections 279, 337, 338 as well as 304A of IPC.
16. PW1 examined in this case is one
Muhammed Shafi. According to him, he travelled in the bus
on the fatal day and the bus started from Guruvayur to
Kozhikode. He entered into the bus from Edarikode and the
bus was driven in speed and when the bus was moved and
left Kozhichena a sound beneath the bus was heard and the
bus moved in zig-zag manner. But the bus was not stopped
and continued upto 10-20 metres and hit against a car and
the bus capsized. The bus was full, and there were also
passengers standing. According to him, the bus was
subjected to fire and somebody had broken the glass behind
the bus and he escaped through the same. The time of
occurrence was at 2 p.m. He had been taken to MKH
hospital for treatment and he had escaped during the rescue
operation. Later PW1 turned hostile to the prosecution. He
14
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
was subsequently cross examined by the Public Prosecutor
and marked his statement regarding the occurrence as
Ext.P1. During his cross examination, he stated that he did
not know the driver of the bus and he did not see him. Thus
when he was questioned by referring his previous statement
in Ext.P1 suggesting that the reason for the accident was the
rash and negligent driving of the accused, he had admitted
the same and he also stated that he could identify the
accused and he also admitted that he had identified the
accused as stated in the previous statement.
17. One Kunhi Muhammed examined in this
case as PW2, who witnessed the occurrence while sitting at
his home at the time of occurrence also initially turned
hostile to the prosecution, later when he was cross-examined
by the Public Prosecutor, he also supported the prosecution
case. PW4 examined in this case is Ramlabi, the owner of
the car against which the bus had hit. She also supported the
occurrence as regards to the hit of the bus against the car and
15
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
according to her, the bus was in over speed and she had seen
fire beneath the bus after the occurrence. In fact, this
witness was not cross examined at all. Though she
supported the prosecution case and heard the voice, her
version remains unchallenged.
18. Coming to the evidence of PW5, who also
was a traveller in the stage carriage on the date of
occurrence, he had testified that he was a victim of the
mishap and he sustained fracture to his left hand. According
to him, he had taken ticket to Madappally College stop from
th
Guruvayur and was seated on the right side on the 5 row
from the front. There were full passengers in the bus and
the bus was driven in over speed and in a careless manner.
According to him, even though the passengers had requested
the accused to reduce the speed of the bus and to be careful
in driving, he did not heed to the same. According to him,
when the vehicle reached Kozhichena a sound was heard
from the bus and then the bus moved in a zig-zag manner
16
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
and then the bus capsized. According to PW5, the over
speed and negligence on the part of the bus driver had
resulted in the occurrence and he had escaped through the
windows of the bus. During cross examination, it was
brought out that the bus was a limited stop bus and not a fast
passenger bus, and there were not many vehicles on the road
at the time of occurrence. During cross examination, he had
revealed further that, upon noticing a lorry involved in an
accident in Valanchery, he told the accused to drive the
vehicle carefully to avoid an accident of the same stature.
The accused, in response, informed him that the bus was a
limited stop service bus and would reach at each stop on
time.
19. Rajesh.P examined in this case is PW6.
According to him, he was engaged in teaching driving, in a
driving school. He had gone to Guruvayur along with one
Vysakh (PW13) for darsan and had returned in the
afternoon. He deposed further that he along with Vaisakh
17
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
had entered into the bus from the private bus stand,
Guruvayur and had sat on the box seat of the bus on the left
side of the cabin of the driver. There were passengers
standing also. The bus had been driven in a rash and
negligent manner and accordingly he had demanded the
driver to reduce the speed and to drive the same carefully.
When the bus reached Kozhichena, a sound was heard from
beneath the bus and thereafter the bus had moved in a zig-
zag manner and eventually hit on the rear side of a car and
capsized. According to him, even after the zig-zag
movement of the bus, the bus driver had not taken any steps
to reduce the speed. After the accident, the driver had fallen
on his body and by breaking one of the windows, the driver
was rescued. PW6 testified that through the same broken
window, himself and Vysakh had also escaped. Thus the
evidence during examination of PW6, who had given crucial
evidence by sitting nearby the driver’s seat near the cabin is
very crucial in this case. Although he was cross-examined,
18
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
his evidence failed to be shaken in any manner.
20. Coming to the version of PW11, Savithri
Antharjanam, PW13 Vaisakh, who accompanied PW6,
PW14 Sri Unnikrishnan, PW17 Lakshmikutty M.C, all of
them had given evidence supporting the prosecution case as
spoken by PW1, PW5 and PW6, without any anomaly,
attributing negligence and carelessness on the part of the accused
and reluctance on the part of the accused, to drive the bus
carefully even after the passengers had given warning of danger.
21. Now the evidence of PW70, who was the
Regional Transport Officer (`RTO) during 2001 is very
relevant. According to him, he had inspected the vehicle
bearing Reg.No. KL 11 E 3987 stage carriage on 12.03.2001
at the place of occurrence, as directed by the Regional
Transport Commissioner and Ext.P113 is the report he had
prepared. Similarly, he had examined the Ambassador car
bearing Reg.No.KLL 415 and prepared Ext.P114 report and
he had stated the reason for the occurrence as “due to
19
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
development of mechanical defect which is a by-product of
the rash, over speed, negligent driving of the vehicle the
accident occurred”. PW70 was cross examined with a view
to elicit the defense case that the accident was the outcome
of breakage of propeller shaft due to mechanical defect. The
learned counsel for the accused specifically argued on this
point to substantiate that, if the occurrence was the
mechanical defect of the bus, either offence under Section
304(ii) or under Sections 279, 337 and 338 of IPC could not
be found. In fact, the reason for the accident is categorically
deposed by PW70 as stated in Ext.P113 report as extracted
above, even during cross-examination, nothing elicited to
disbelieve the said evidence. It is true that, on the defense
side, another RTO, who had retired from service, was
examined to address the technical aspect. According to him,
when there is a breakage on the propeller shaft, the
connection between the tyre and the road could be lost and if
proper action would not be taken, steering control might not
20
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
be maintained. The case of the accused is that the accused
did not contribute anything to the accident and the accident
was the result of breakage of propeller shaft as the outcome
of a mechanical defect During cross examination, it is
admitted by DW1, who had retired in the year 1988 and the
RTO in service who had inspected the vehicle could speak
of the details and he did not inspect the vehicle and he had
deposed something on the mechanical side. Lastly his
evidence is that, no damage would be caused to the braking
system because of the breakage of propeller shaft and no
damage would be caused to the steering system also because
of breakage of propeller shaft. He also stated that on
breakage of propeller shaft, the vehicle would not be moved
in a zig zag manner. Finally, his evidence is that when a
vehicle would be driven in over speed, there would be
likelihood of damage being caused to the components.
22. It is true that, as held by the Apex Court in
State of Karnataka 's case ( supra ), merely because a vehicle
21
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
was driven at a high speed, the same by itself did not
establish negligence when none of the witnesses examined
by the prosecution could even approximately indicate what
they meant by ‘high speed’. No doubt, `high speed’ is a
relative term and it is the duty of the prosecution to explain
what is meant by `high speed’ in the facts and circumstances
of each case. Similarly, it is well settled that in a criminal
prosecution, the burden of proving the offence/offences
committed by the accused always rests upon the prosecution
and there is a presumption of innocence in favour of the
accused unless he would be found guilty. Thus in a case
where the witnesses had given evidence stating that the
vehicle had been driven in over speed or high speed, without
indicating any element of negligence, the same by itself
cannot be held sufficient to find rashness on the part of the
accused. However, when witnesses unanimously depose
about over speed, rashness, and negligent driving, and their
versions remain unshaken during cross-examination, such
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Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
evidence would clearly suggest that rashness and negligence
were the causes of the accident.
23. In the instant case, the evidence discussed
would show rashness and negligence on the part of the
accused and the same would further show that despite the
warning and request repeatedly made by the passengers to
reduce the speed of the bus, which was driven in over speed
and in a rash and negligent manner, the accused failed to
heed their apprehensions and his explanation was that, since
the bus was a limited stop service, the same had to reach
each station on time. This vital evidence given by the
witnesses, as already quoted, would show that the driver was
either not ready to drive the vehicle carefully and without
the element of rashness and negligence, and his intention
was to reach the destination on time even by driving the bus
in a rash and negligent manner.
24. As already observed, in order to bring
home an offence under Section 304 of IPC, the intention to
23
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Crl.R.P.No.674 of 2018-D1
cause death or the intention to cause such bodily injury as is
likely to cause death or with the knowledge that is likely to
cause death are the ingredients.
25. In the decision reported in [(2024) 20 SCC
500], Anbazhagan v. State represented by the Inspector of
Police , the Apex Court held in para.27 that, t he framers of
IPC designedly used the two words "intention" and
"knowledge", and it must be taken that the framers intended
to draw a distinction between these two expressions. The
knowledge of the consequences which may result in the
doing of an act is not the same thing as the intention that
such consequences should ensue. Except in cases where
mens rea is not required in order to prove that a person had
certain knowledge, he "must have been aware that certain
specified harmful consequences would or could follow."
26. When a driver drives a stage carriage, it
could not ordinarily be held that he had a deliberate intention
to cause death of the travellers or the passengers nearby.
24
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
Thus the said overt acts do not attract an offence under
Section 299 of IPC punishable under Section 304 Part I of
IPC. But when a driver drives a vehicle in a rash and
negligent manner, the same alone would result in causing
death of the travellers or passengers and the offence
punishable under Section 304A of IPC alone would get
attracted. But the knowledge of the driver that certain
specified harmful consequence and fatality would be
sufficient to attract the ingredients for the offence punishable
under Section 304 Part II of IPC. Thus these are the vital
aspects which would determine whether the offence falls
either under Section 304A of IPC or under Section 304(ii) of
IPC. When a person commits culpable homicide not
amounting to murder, the same is an offence under Section
299 of IPC punishable under Section 304 of IPC. Section
304 of IPC mainly has two parts, viz. Part I and part II,
depending upon the ingredients.
27. In the decision reported in [(2008) 1 SCC
25
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
791] , Naresh Giri v. Sate of M.P , the Apex Court
considered a case alleging commission of offences
punishable under Section 302 and alternatively under
Sections 304, 325 and 323 of IPC. The facts of the case was
that, o n 29-8-2004 bus bearing No. MPO 10588 was going
from Ahrauli towards Kailaras. While it was near a railway
crossing, an accident took place. A train hit the bus at the
railway crossing. In the accident the bus which was being
driven by the appellant was badly damaged and as a result of
the accident several passengers got injured and two persons,
namely, Bhagoli @ Bhagwati and Ankush died. First
information report was lodged by Brijmohan Sharma,
Constable. After completion of investigation charge-sheet
was filed. In the said case, while alleging the charges to
Section 304A of IPC as well as under Sections 299, 300 of
IPC, the Apex Court considered the difference between
offences punishable under Sections 304 & 304A of IPC in
paragraphs 7, 8 and 9 as under:
26
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
“7. Section 304-A IPC applies to cases
where there is no intention to cause death and no
knowledge that the act done in all probability will cause
death. The provision is directed at of-fences outside the
range of Sections 299 and 300 IPC. Section 304-A
applies only to such acts which are rash and negligent
and are directly the cause of death of another person.
Negligence and rashness are essential elements under
Section 304-A.
8. Section 304-A carves out a specific
offence where death is caused by doing a rash or
negligent act and that act does not amount to culpable
homicide under Section 299 or murder under Section
300. If a person wilfully drives a motor vehicle into the
midst of a crowd and thereby causes death to some
person, it will not be a case of mere rash and negligent
driving and the act will amount to culpable homicide.
Doing an act with the intent to kill a person or
knowledge that doing an act was likely to cause a
person's death is culpable homicide. When intent or
knowledge is the direct motivating force of the act,
Section 304- A has to make room for the graver and
more serious charge of culpable homicide. The provision
of this section is not limited to rash or negligent driving.
Any rash or negligent act whereby death of any person is
caused becomes punishable. Two elements either of
which or both of which may be proved to establish the
27
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Crl.R.P.No.674 of 2018-D1
guilt of an accused are rashness/negligence; a person
may cause death by a rash or negligent act which may
have nothing to do with driving at all. Negligence and
rashness to be punishable in terms of Section 304-A must
be attributable to a state of mind wherein the criminality
arises because of no error in judgment but of a
deliberation in the mind risking the crime as well as the
life of the person who may lose his life as a result of the
crime. Section 304-A discloses that criminality may be
that apart from any mens rea, there may be no motive or
intention still a person may venture or practise such
rashness or negligence which may cause the death of
other. The death so caused is not the determining factor.
9. What constitutes negligence has
th
been analysed in Halsbury’s Laws of England (4
Edn.), Vol.34, Para 1 (p.3), as follows:
“1. General principles of the law of
negligence:-- Negligence is a specific tort and in any
given circumstances is the failure to exercise that care
which the circumstances demand. What amounts to
negligence depends on the facts of each particular
case. It may consist in omitting to do something which
ought to be done or in doing something which ought to
be done either in a different manner or not at all.
Where there is no duty to exercise care, negligence in
the popular sense has no legal consequence. Where
there is a duty to exercise care, reasonable care must
28
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
be taken to avoid acts or omissions which can be
reasonably foreseen to be likely to cause physical
injury to persons or property. The degree of care
required in the particular case depends on the
surrounding circumstances, and may vary according
to the amount of the risk to be encountered and to the
magnitude of the prospective injury. The duty of care
is owed only to those persons who are in the area of
foreseeable danger; the fact that the act of the
defendant violated his duty of care to a third person
does not enable the plaintiff who is also injured by the
same act to claim unless he is also within the area of
foreseeable danger. The same act or omission may
accordingly in some circumstances involve liability as
being negligent, although in other circumstances it
will not do so. The material considerations are the
absence of care which is on the part of the defendant
owed to the plaintiff in the circumstances of the case
and damage suffered by the plaintiff, together with
demonstrable relation of cause and effect between the
two.”
28. In another decision in [(2012) 8 SCC 450],
State through Ps Lodhi Colony, New Delhi v. Sanjeev
Nanda , the Apex Court considered a case to decide what is
the offence to be committed in the facts dealt in the said
29
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
case, viz.304(ii) or Section 304A of IPC. The facts of the
case are stated in paragraphs 3, 4, 5 and 6 as under:
“3. Facts shorn of unnecessary details as
unfolded by the prosecution are mentioned herein below :
on the intervening night of 9-1-1999/10-1-1999, an
unfortunate motor accident took place involving BMW Car
No. M 312 LYP. At the relevant point of time, it is no more
in dispute that the offending vehicle BMW was being
driven by the respondent. As per the prosecution story, the
said vehicle was coming from Nizamuddin side and was
proceeding towards Lodhi Road. Just at the corner from
where Lodhi Road starts, seven persons were standing on
the road at about 4.00 a.m. In the said car, Manik Kapur
and Sidharth Gupta (since discharged) were also sitting.
4. As per the prosecution story, Manoj
Malik (PW 2) had started from his house to leave friends
Nasir, Mehendi Hasan and his friend Gulab at Nizamuddin
Railway Station on foot. When they reached the petrol
pump of Lodhi Road, three police officials of the checking
squad, Constables Rajan, Ram Raj and Peru Lal, stopped
them and started checking. In the meantime, a BMW car
driven rashly and negligently came from the Nizamuddin
side at a high speed and dashed violently against them.
The impact was so great and severe, that they flew in the
air and fell on the bonnet and windscreen of the car. Some
30
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
of them rolled down and came beneath the car. On account
of this, the accused lost control of the vehicle which
swerved to the right side of the road and ultimately hit the
central verge. The persons who had come under the car
were dragged up to that point. Manoj (PW 2) who had
fallen on the bonnet fell down at some distance but did not
come under the wheels.
5. After hitting the central verge, the car
finally stopped at some distance, the respondent came out
from the car and inspected the gruesome site. It is said that
co-passenger Manik Kapur asked the accused to rush from
the scene of occurrence. Injured persons were shouting
and crying for help. But ignoring them, he drove away the
car at high speed towards Dayal Singh College, even
though there were still some persons beneath the car. In
the said accident, ultimately, six of them were killed and
Manoj (PW 2) was injured. The accused then took the car
to his friend Sidharth Gupta's house at 50, Golf Links, New
Delhi. The prosecution story further goes to show that
there another accused, Rajeev Gupta, father of Sidharth
Gupta with the help of two servants, accused Shyam and
Bhola washed the car and destroyed the material
evidence.”
29. In the said case, thereafter in paragrahs
111 to 114, the Apex Court held as under:
31
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
“ 111. In Jagriti Devi v. State of H.P . a
Bench of this Court held that it is trite law that Section
304 Part Il comes into play when the death is caused
by doing an act with knowledge that it is likely to
cause death but there is no intention on the part of the
accused either to cause death or to cause such bodily
injury as is likely to cause death.
112. In one of the earlier decisions of this
Court in State of A.P. v. Rayavarapu Punnayya,this
Court succinctly examined the distinction between
Section 299 and Section 300 IPC and in para 12 of the
judgment held as follows: (SCC p. 386)
"12. In the scheme of the Penal
Code, 'culpable homicide' is genus and
'murder' its specie. All 'murder' is 'culpable
homicide but not vice versa. Speaking
generally, 'culpable homicide sans 'special
characteristics of murder', is 'culpable
homicide not amounting to murder'. For the
purpose of fixing punishment, proportionate to
the gravity of this generic offence, the Code
practically recognises three degrees of
culpable homicide. The first is, what may be
called, 'culpable homicide of the first degree.
This is the gravest form of culpable homicide,
which is defined in Section 300 as 'murder'.
32
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
The second may be termed as 'culpable
homicide of the second degree. This is
punishable under the first part of Section 304.
Then, there is 'culpable homicide of the third
degree'. This is the lowest type of culpable
homicide and the punishment provided for it is,
also, the lowest among the punishments
provided for the three grades. Culpable
homicide of this degree is punishable under the
second part of Section 304."
Referring to para 14 of that judgment, the Court
opined that the difference between clause (b) of
Section 299 and clause (3) of Section 300 is one of the
degree of probability of death resulting from the
intended bodily injury. The word "likely" in clause (b)
of Section 299 conveys the sense of "probable" as
distinguished from a mere possibility. The words
"bodily injury sufficient in the ordinary course of
nature to cause death" mean that death will be the
"most probable" result of the injury having regard to
the ordinary course of nature.
113. Ultimately, the Court concluded as follows:
(Rayavara-pu Punnayya case , SCC pp. 388-89, para 21)
"21. From the above conspectus, it
emerges that whenever a court is confronted with
the question whether the offence is 'murder’ or
33
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
'culpable homicide not amounting to murder', on
the facts of a case, it will be convenient for it to
approach the problem in three stages. The question
to be considered at the first stage would be, whether
the accused has done an act by doing which he has
caused the death of another. Proof of such causal
connection between the act of the accused and the
death, leads to the second stage for considering
whether that act of the accused amounts to
'culpable homicide as defined in Section 299. If the
answer to this question is prima facie found in the
affirmative, the stage for considering the operation
of Section 300 of the Penal Code, is reached. This is
the stage at which the court should determine
whether the facts proved by the prosecution bring
the case within the ambit of any of the four clauses
of the definition of 'murder' contained in Section
300. If the answer to this question is in the negative
the offence would be 'culpable homicide not
amounting to murder, punishable under the first or
the second part of Section 304, depending,
respectively, on whether the second or the third
clause of Section 299 is applicable. If this question
is found in the positive, but the case comes, within
any of the exceptions enumerated in Section 300,
the offence would still be 'culpable homicide not
34
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
amounting to murder', punishable under the first
part of Section 304 of the Penal Code."
114. The principle mentioned by this Court in Alister Anthony
Pareira indicates that the person must be presumed to have had
the knowledge that, his act of driving the vehicle without a
licence in a high speed after consuming liquor beyond the
permissible limit, is likely or sufficient in the ordinary course of
nature to cause death of the pedestrians on the road. In our
view, Alister Anthony Pareira judgment calls for no
reconsideration. Assuming that Shri Ram Jethmalani is right in
contending that while he was driving the vehicle in a drunken
state, he had no intention or knowledge that his action was
likely to cause death of six human beings, in our view, at least,
immediately after having hit so many human beings and the
bodies scattered around, he had the know-edge that his action
was likely to cause death of so many human beings, lying on
the road unattended. To say, still he had no knowledge about
his action is too childish which no reasonable man can accept
as worthy of consideration. So far as this case is concerned, it
has been brought out in evidence that the accused was in an
inebriated state, after consuming excessive alcohol, he was
driving the vehicle without licence, in a rash and negligent
manner in a high speed which resulted in the death of six
persons. The accused had sufficient knowledge that his action
was likely to cause death and such an action would, in the facts
and circumstances of this case, fall under Section 304 Part II
35
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
IPC and the trial court has rightly held so and the High Court
has committed an error in converting the offence to Section
304-A IPC.”
30. Thus the law emerges is that t he framers of
IPC designedly used the two words "intention" and
"knowledge", and it must be taken that the framers intended
to draw a distinction between these two expressions. The
knowledge of the consequences which may result in the
doing of an act is not the same thing as the intention that
such consequences should ensue. Except in cases where
mens rea is not required in order to prove that a person had
certain knowledge, he must have been aware that certain
specified harmful consequences would or could follow.
Section 304-A IPC applies to cases where there is no
intention to cause death and no knowledge that the act done
in all probability will cause death. The provision operates
outside the range of Sections 299 and 300 IPC. Section 304-
A applies only to such acts which are rash and negligent and
are directly the cause of death of another person. Negligence
36
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
and rashness are essential elements under Section 304-A.
When intent or knowledge is the direct motivating force of
the act, Section 304- A has to make room for the graver and
more serious charge of culpable homicide. The provision of
this section is not limited to rash or negligent driving. Any
rash or negligent act whereby death of any person is caused
becomes punishable. Two elements either of which or both
of which may be proved to establish the guilt of an accused
are rashness/negligence; a person may cause death by a rash
or negligent act which may have nothing to do with driving
at all. Negligence and rashness to be punishable in terms of
Section 304-A must be attributable to a state of mind
wherein the criminality arises because of no error in
judgment but of a deliberation in the mind risking the crime
as well as the life of the person who may lose his life as a
result of the crime. Section 304-A discloses that criminality
may be that apart from any mens rea , there may be no
motive or intention still a person may venture or practise
37
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
such rashness or negligence which may cause the death of
other. The death so caused is not the determining factor.
Whenever a court is confronted with the question whether
the offence is 'murder’ or 'culpable homicide not amounting
to murder', on the facts of a case, it will be convenient for it
to approach the problem in three stages, viz;
(i) whether the accused has done an act by doing
which he has caused the death of another. Proof of such
causal connection between the act of the accused and the
death, leads to the second stage for considering;
(ii) whether that act of the accused amounts to
'culpable homicide as defined in Section 299. If the answer
to this question is prima facie found in the affirmative, the
stage for considering the operation of Section 300 of the
Penal Code, is reached. This is the stage at which the court
should determine; and
(iii) whether the facts proved by the prosecution
bring the case within the ambit of any of the four clauses of
38
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
the definition of 'murder' contained in Section 300. If the
answer to this question is in the negative the offence would
be 'culpable homicide not amounting to murder, punishable
under the first or the second part of Section 304, depending,
respectively, on whether the second or the third clause of
Section 299 is applicable. If this question is found in the
positive, but the case comes, within any of the exceptions
enumerated in Section 300, the offence would still be
'culpable homicide not amounting to murder', punishable
under the first part of Section 304 of the Penal Code.
31. Thus while driving a vehicle if the driver
had knowledge that his action would likely to cause death,
such an action would, in the facts and circumstances of the
case, fall under Section 304(ii) of IPC and not under Section
304A of IPC. Here PW5, who travelled in the stage carriage
at the time of occurrence, had given categoric evidence that
th
he was seated on the right side of the 5 row from the front
and the driver had driven the bus in over speed and in a
39
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
careless manner. Accordingly, the passengers had requested
the accused to reduce the speed of the bus and to be careful
in driving, then the accused didn’t heed the request. He
stated further that due to over speed and negligence on the
part of the bus driver, when the vehicle reached Kozhichena,
a sound was heard from the bus and after moving for a
while, the bus was capsized. PW5 deposed further that
while travelling in the bus, just before the occurrence, upon
noticing a lorry involved in an accident in Valancherry, he
specifically told the accused to drive the vehicle carefully to
avoid an accident of the same nature. In reply to this, the
accused answered that the bus was a limited stop service bus
and the same would reach at each stop on time. PW6, who
in fact is a teacher in driving, running a driving school, sat
on the box seat of the bus immediately on the left side of the
cabin of the driver, stated that the bus had been driven in a
rash and negligent manner and accordingly he had
demanded the driver to reduce the speed and to drive the
40
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
vehicle carefully. But it was not accepted by the accused.
He also deposed that, when the bus reached Kozhichena, a
sound was heard from beneath the bus and thereafter also he
had failed to stop the bus and thereafter the bus moved in a
zig-zag manner. But the driver did not take any steps to
reduce the speed. PW1 also deposed that the bus moved 10-
20 metres after hearing a sound from beneath the bus as the
driver failed to brake the bus even after the sound. It has
come out in evidence through Ext.P113 and the evidence of
PW70 that, due to development of mechanical defect, which
is a by-product of the result of the rash, over speed and
negligent driving of the accused, the accident had occurred.
32. Apart from that DW1, also deposed that no
damage would be caused to the braking system because of
the breakage of the propeller shaft and no damage would be
caused to the steering system also because of the propeller
shaft and he also deposed that when the vehicle would be
driven in over speed, there would be a likelihood of damage
41
Crl.Appeal No.1556 of 2007-B &
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being caused to the components. Thus in the instant case,
as deposed by almost all witnesses to the occurrence, the
occurrence was the overt act of the accused, who had driven
the vehicle at the relevant time so rashly in over speed. Even
though mere rash driving would attract the offence under
Section 304A of IPC, the rash driving of the vehicle in over
speed would indicate that the driver had knowledge
regarding the consequences which would result from doing
the said act, viz. fatality to the passengers, particularly, when
he was warned and requested by the passengers to reduce the
speed to avoid fatality to the travellers. Evaluating the facts
and evidence as afore, this case could not be considered as
one fully within the purview of mere rash and negligent
driving to attract the offence under Section 304A of IPC. To
the contrary, in this case, the accused had sufficient
knowledge regarding the consequences of the acts done by
him, i.e nothing but fatality to human beings, including the
travellers or pedestrains. Ultimately the overt acts of the
42
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
accused resulted in death of 44 human beings. If so, the
finding of the learned Assistant Sessions Judge that the
offence which would attract in the facts of this case is only
the offence under Section 304A of IPC, would not sustain,
since the available evidence established commission of
offence punishable under Section 304(ii) of IPC by the
appellant/accused. In view of the matter, the verdict
challenged in Crl.Appeal No.1556/2007 is set aside altering
the offence under Section 304A of IPC to 304(ii) of IPC
while confirming the conviction recorded by the learned
Assistant Sessions Judge for the other offences. As a sequel
thereof, the verdicts impugned in the Revision Petition also
are liable to be set aside in the same way.
33. In the result:
(i) Crl.Appeal No.1556 of 2007 stands
allowed.
(ii) The judgments assailed in
Crl.R.P.No.674/2018 are interfered and set aside, and it is
held that the finding therein that the accused committed the
43
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
offence under Section 304A of IPC, is unsustainable.
(iii) It is held that the accused/appellant
committed the offences punishable under Section 304(ii) of
IPC as well as under Sections 279, 337 and 338 of IPC and
he is convicted for the said offences.
The order suspending his sentence and granting bail
to the accused stands vacated.
Sd/- ( A. BADHARUDEEN, JUDGE)
rtr/
44
Crl.Appeal No.1556 of 2007-B &
Crl.R.P.No.674 of 2018-D1
1. In this case, this Court found that the
accused committed offence punishable under Section
304(ii) of IPC, while confirming the conviction for the
offences under Sections 279, 337 and 338 of IPC.
2. The accused, who is personally present
before this Court today was heard on the question of
sentence to be imposed for the offence under Section 304(ii)
of IPC. He had submitted that he had suffered mental
distress for the past 2 to 3 years, because of this occurrence.
He further submitted that he has a daughter aged 25 years
and that he is the sole breadwinner of his family. Therefore,
he prayed that the sentence may kindly be reduced to the
least minimum possible.
3. The learned counsel for the accused
submitted that the accused is now aged 64 years, though the
occurrence had taken place 25 years ago and he is the only
person to look after the affairs of his family. He also would
submit that, having considered the above facts, maximum
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Crl.Appeal No.1556 of 2007-B &
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leniency may be shown in the matter of sentence.
4. In this case, the death of 44 persons had
occurred. Considering the seriousness of the offence, the
consequences thereof and also in consideration of the
submissions made by the accused and his counsel, this Court
is of the view that the following sentence would be
reasonable.
5. Therefore, the accused is sentenced to
undergo simple imprisonment for a period of five years and
to pay a fine of Rs.2 Lakh for the offence under Section
304(ii) of the IPC and in default of payment of the fine, the
accused shall undergo simple default imprisonment for a
period of one year.
6. The sentences imposed by the Assistant
Sessions Judge for the offences under Sections 279, 337 and
338 of IPC are confirmed.
The period during which the accused had been in
custody in connection with this crime shall be set off.
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The substantive sentence shall run concurrently,
and the default sentence shall run separately.
The accused is sent to Central Prison, Viyyur, along
with execution warrant.
The Jail Superintendent is directed to give
medical aid, if necessary.
nd
Dated, this the 02 day of March, 2026.
Sd/-
A. BADHARUDEEN, JUDGE
Bb/