Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1751 OF 2023
(Arising out of SLP (Criminal) No. 2161 of 2023)
Abdul Ansar … Appellant
v.
State of Kerala ... Respondent
J U D G M E N T
ABHAY S. OKA, J.
Leave granted.
1.
2. The question which arises in this appeal is whether the
conviction of the appellant for the offence punishable under
Section 308 of the Indian Penal Code (IPC) can be sustained.
RELEVANT FACTUAL ASPECTS
The present appellant is accused No. 2. The accused
3.
no.1 was the driver of a stage carriage bus. The appellant–
accused No.2 was the conductor, and accused No. 3 was the
cleaner. PW1 Josia (injured) was at the relevant time
Signature Not Verified
th
studying in 8 standard. She along with her younger sister
Digitally signed by
Anita Malhotra
Date: 2023.07.05
16:37:54 IST
Reason:
Jovan, PW7, were waiting at the Karithambu bus stop for
boarding a bus for going to their school. According to the
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prosecution case, after the bus reached the said bus stop,
PW7 Jovan boarded the bus followed by two other girls.
There was a rush for boarding the bus. When PW1 Josia
tried to board the bus by putting her one leg on the footboard
of the bus, accused no.3 pushed her down with his hands
while he was standing on the footboard of the bus. The girl
fell down on the road and came under the left rear wheel of
the bus. She sustained serious injuries including fracture of
pelvis. The allegation against the appellant was that without
waiting for the PW1 to board the bus, he rang the bell as a
result of which accused No.1 started the bus. The
prosecution applied offences punishable under Sections 279
and 308 read with Section 34 of IPC. Apart from PW1 and
PW7, PW2 Sister Elsamma, a teacher was an important
witness. She was a teacher working in the same school where
PW1 and PW7 were studying. She was standing at the same
bus stop when the incident occurred and therefore, she is an
eyewitness to the incident.
4. The learned Additional Sessions Judge acquitted the
driver – accused No. 1. However, he convicted the appellant
and accused No. 3 for the offence punishable under Section
308 read with Section 34 of IPC. He sentenced both of them to
suffer rigorous imprisonment for four years with a fine of
Rs.5,000/ each. In default of payment of the fine, a sentence
of rigorous imprisonment for six months was imposed. Out of
the fine amount, a sum of Rs.7,500/ was ordered to be paid
to the victim of the offence. By the impugned judgment, the
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appeal preferred by the appellant and accused no. 3 was
decided. The High Court acquitted accused No. 3. While
confirming the conviction of the appellant under Section 308
of IPC, the sentence was brought down to one year by
directing him to pay a fine of Rs.50,000/. The High Court
noted that the incident was of the year 2005 and a period of
17 years had lapsed from the date of the incident.
RIVAL SUBMISSIONS
5. The learned counsel appearing for the appellant
submitted that the offence of attempt to commit culpable
homicide not amounting to murder was not established on
the evidence. He submitted that accused no.3, the cleaner
was standing on the footboard of the bus. He pointed out that
the allegation against him was that while PW1 was
attempting to board the bus, he not only did not help her but
virtually pushed her out of the bus. He submitted that all
that is alleged against the appellant is that he rang the bell
which was a signal to the driver to start the vehicle and
accused No.1 started the bus as a result of which PW1 fell
down and sustained serious injuries. He submitted that as
accused no.3 has been acquitted by the High Court, the
conviction of the appellant cannot be sustained. He
th
submitted that the incident occurred on 18 August 2005
which is more than 17 and half years old. The appellant has
undergone incarceration for a period of 36 days. He was
throughout on bail.
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6. The learned counsel appearing for the respondent State
pointed out that it was the duty of the appellant as a
conductor to ensure that all the passengers safely board the
bus at the bus stop and the further duty of the appellant was
to close the door of the bus and thereafter, ring the bell for
giving a signal to the driver to start the bus. He submitted
that the appellant had knowledge that at the bus stop, many
students were waiting to board the bus to reach their schools.
Therefore, knowledge on his part can be inferred that by his
act of ringing the bell without taking precautions, death can
be caused of a passenger who is trying to board the bus. He
pointed out the injuries sustained by PW1. He submitted
that the injuries were very serious, though fortunately, PW1
survived. He would, therefore, submit that the offence under
Section 308 was established.
OUR VIEW
7. We have perused the evidence of PW1. Her version in
the examinationinchief reads thus:
“Jovan (CW7my sister) and I were waiting
at Karithambu bus stop for going to school.
Bus named Ponmankal had arrived. As it
was packed, I told Jovan that we will get in
the next bus. Jovan told that she had
special class and that we will board this
bus. We board the bus in line. Jovan
boarded the bus. Jovan’s bus fare was with
th
me. Jovan was studying in 7 standard.
After Jovan, 2 other elder girls boarded the
bus. Cleaner was standing inside the bus.
I
stepped my one leg inside the bus and
boarded it. By that time the bus moved. I
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asked the cleaner to hold me. Cleaner
came to hold me but did not get hold of
me. By then, I tripped and fell outside. I
fell beneath the bus. I was unconscious.”
(emphasis supplied)
8. In the crossexamination, PW1 stated that if her
younger sister (PW7) had not boarded the bus, she would
not have boarded the bus. As the bus ticket of her sister (PW
7) was with PW1, she attempted to board the bus. PW2
Sister Elsamma was standing at the same bus stop at the
time of the incident. She stated that though some of the
students of her school boarded the bus, she decided not to
board the bus as it was overcrowded. She stated that while
PW1 was attempting to board the bus, the bell rang and the
bus started moving as a result of which she fell down from
the footboard. PW7 partly did not support the prosecution.
PW7 stated that PW1 had suggested her to take the next
bus. However, she insisted on boarding the said bus as she
had to attend special classes. She stated that while PW1
was attempting to board the bus, the conductor rang the
bell.
9. Prosecution placed reliance on the Kerala Motor Vehicle
Rules, 1989 (for short, “the Kerala Rules”) which are framed
under the Motor Vehicles Act, 1988. Under Rule 89, the
conduct, duties and functions of conductors have been laid
down. Clause (o) of Rule 89 relied upon by the Prosecution
lays down that it is the duty of the conductor not to interfere
with persons mounting and preparing to mount upon any
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other vehicle. Clause (o) is obviously not applicable to this
case.
It is borne out from the evidence of PW2 Sister
10.
Elsamma that the bus was completely packed and therefore,
she did not board the same. Even PW1 stated that the bus
was packed. According to her, as PW7 had to attend a
special class, she boarded the bus. PW1 tried to board the
bus as PW7’s bus ticket was with her. Both PW2 and PW7
stated that the bell rang when PW1 was attempting to board
the bus. After having perused their crossexamination, we
find that there is no reason to disbelieve the said version.
Thus, the appellant gave a signal to the driver to start the
bus even before PW1 could properly board the bus.
11. Under Section 308, an attempt to commit culpable
homicide not amounting to murder has been made an
offence. Therefore, we will have to examine whether there
was any attempt on the part of the appellant to commit
culpable homicide.
It is not the prosecution’s case that the appellant had
12.
any intention to cause the death of PW1 or intention to
cause such bodily injury to her as is likely to cause her
death. The question is whether the appellant had knowledge
that he, by virtue of the act of ringing the bell, was likely to
cause death. It is not possible to say that the appellant while
ringing the bell, had knowledge that his act is likely to cause
the death of PW1. The bus was over crowded. The cleaner
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was standing near the footboard. Therefore, in the absence of
intention and knowledge as contemplated by Section 299 of
IPC, the offence of attempt to commit culpable homicide not
amounting to murder was not made out. This is not a case
where if the appellant’s act would have resulted into the
death of PW1, he would be guilty of culpable homicide, not
amounting to murder.
13. By applying principles incorporated in subsection (2)
of Section 222 of the Code of Criminal Procedure, 1973 (for
short, “CrPC”), the Court can consider whether the appellant
has committed any other offence which is a minor offence in
comparison to the offence for which he is tried.
Now, we turn to Section 338 of IPC, which reads thus:
14.
“338. Causing grievous hurt by act
endangering life or personal safety of
others .—Whoever causes grievous hurt to
any person by doing any act so rashly or
negligently as to endanger human life, or
the personal safety of others, shall be
punished with imprisonment of either
description for a term which may extend
to two years, or with fine which may
extend to one thousand rupees, or with
both.”
At that relevant time, the bus was overcrowded. There were
a number of passengers waiting at the bus stop. Therefore, it
was the duty of the appellant as a conductor to take care of
the passengers. Hence, before he rang the bell and gave a
signal to the driver to start the bus, he ought to have verified
whether all passengers had safely boarded the bus. He could
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have ascertained this from accused no.3 – cleaner who was
standing near the door of the bus. However, he did not take
that precaution and care which he was under an obligation
to take. Therefore, the appellant acted rashly and negligently
as he did not perform his duty of being careful. The
appellant knew that at the relevant bus stop, a large number
of students were waiting to take the bus to reach their school
and therefore, the appellant ought to have verified whether
all the passengers had properly boarded the bus before giving
the signal to the driver. However, he did not verify whether
the passengers had properly boarded the bus. Therefore, he
is guilty of negligence as he failed to perform his duty. In
fact, this was an act of recklessness on his part. The fact is
that due to the negligence on the part of the appellant,
human life was endangered. Grievous hurt was caused to
PW1 as she suffered fracture of pelvis.
15. In the circumstances, we are of the view that the
appellant is guilty of the commission of an offence
punishable under Section 338 of IPC. There will not be any
prejudice caused to him as the appellant had sufficient
notice of allegations of negligence against him during the
trial. Hence, omission to frame charge under Section 338 of
IPC will not be fatal. For the offence punishable under
Section 338 of IPC, the period of imprisonment can extend to
two years. As noted earlier, the incident is of 2005. So far,
the appellant has undergone the sentence for only 36 days.
In our view, considering the fact that the incident is of the
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year 2005 and other factual aspects, a sentence of simple
imprisonment for six months will be an appropriate
punishment in the facts of the case. As per the directions of
the High Court, a sum of Rs.50,000/ had been deposited by
the appellant. Looking at the serious injuries sustained by
PW1 at the young age of 13 years, she must be adequately
compensated. The High Court had imposed a fine of Rs.
50,000/ which amount has been deposited. In addition to
the sum of Rs.50,000/already deposited, we propose to
direct the appellant to deposit an additional amount of
Rs.25,000/.
16. Hence, impugned judgments are modified insofar as the
appellant–accused No.2 is concerned. Instead of Section 308
of IPC, he is held guilty of an offence punishable under
Section 338 of the IPC. The appellant shall undergo simple
imprisonment for a period of six months. He is entitled to
claim a setoff for the period of incarceration already
undergone.
17. The appellant shall pay a total amount of Rs.75,000/
out of which a sum of Rs.50,000/ has already been
deposited. Out of the said amount, a sum of Rs.45,000/
shall be paid over to the victim – PW1 as compensation. The
remaining amount of Rs.5,000/ will go to the State
Government. The appellant is directed to pay an additional
amount of Rs.25,000/ by way of deposit in the Trial Court
within a period of two months from today. The said amount
shall also be paid to PW1 as compensation. In default of the
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payment of the said amount, the appellant shall undergo
simple imprisonment for one month. Accordingly, the appeal
is partly allowed in the above terms. We direct the appellant
to surrender within a period of four weeks from today before
the Trial Court to enable the Trial Court to send him to
prison for undergoing the remaining sentence. A copy of this
judgment shall be forwarded to the Trial Court.
……..….……………J.
(Abhay S. Oka)
……...………………J.
(Rajesh Bindal)
New Delhi;
July 5, 2023.
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