Shantappa and Vijaykumar vs State of Karnataka

Huluvadi G. Ramesh, J.—Appeal is against the order of conviction and sentence passed by the I Addl. Sessions Judge, Gulbarga in SC 344/2009 on 16.8.2010. According to the prosecution, on 26.3.2009 around 9.40 a.m., the PSI of Farhatabad Police Station received a message that there was drowning of the motor boat in Bhima river at Aurad K village and on visit to the spot, he found about five persons had died due to drowning of the boat. A case was registered in Crime No. 51/2009 by Farhatabad Police. According to the complainant, he himself along with family members intending to visit Maramma Temple to perform Pooja, reached Kobal village near the bank of Bhima river and boarded the boat. When they were going in the boat to cross the river, when the boat was in the middle of the river, due to perforation, water was collecting inside the boat. Noticing the same, complainant informed the accused who was operating the boat that they would clear the water from the boat. Despite their request, the accused did not heed to their request to remove the water from the vessel and in a rash and negligent manner, endangered human lives. It is alleged, the motor boat was not maintained property due to which water got collected and as a result, it capsized and five persons drowned in the river, as such, accused have committed offence under S. 304, IPC. Charge sheet was filed under S. 280 and 304, IPC. Since the accused pleaded not guilty, prosecution examined about thirty five witnesses and got marked twenty documents and one material object. Trial court has held the death is not homicidal and it was due to negligence of the accused, the boat belonged to 2nd accused and operated by 1st accused who have not taken proper precautions, thereby both of them committed the offence under S. 280 and 304A, IPC. While convicting the accused for the offence under S. 280, IPC, the trial court sentenced them to undergo simple imprisonment for six months and to pay fine of Rs. 1,000/- each and default sentence of three months and while convicting the accused for the offence under S. 304A, sentenced to undergo simple imprisonment for two years and to pay fine of Rs. 20,000/- each and default sentence of six months imprisonment and also allowed the benefit of set of under S. 428, Cr.P.C.

Heard the counsel representing the parties.

On hearing the arguments of the counsel, the points that arise for consideration are:

Whether the trial court is justified in convicting and sentencing the accused for the offence under S. 280 and 304A, IPC;

Whether the prosecution is able to prove the case against the accused beyond reasonable doubt;

Whether the order of the trial court needs interference;

What order.

Section 280, IPC deals with rash navigation of a vessel which endangers human life. Of course, S. 280 has been rightly invoked based on the evidence of the complainant and other witnesses that the vessel was navigated in a negligent manner without looking into the condition of the vessel - whether it was in a fit condition to be used and operated. So far as homicidal death is concerned under S. 304A, of course it is not a case of homicide. Rather the act is one of negligence without taking note of the condition of the vessel which resulted in the death of five innocent persons. There is no ingredient of causing bodily injury or intention to cause death except sheer negligence in using the vessel which is not in a fit condition. The very act does not amount to culpable homicide but amounts to negligence i.e., without verifying whether the vessel is fit for using and to navigate.

The summary of the evidence of the prosecution witnesses is: Complainant and his family members intended to go to Maramma Temple situate across Bhima river in Aurad K village on the other side of the river and boarded the motor boat owned by the 2nd accused and operated by the 1st accused. When the boat was in the middle of the river, it was noticed that there was some perforation through which water was getting collected in the boat. When the complainant and others requested that they would throw out the water, they were told that the driver of the boat would manage to cross the river and despite they requesting once again, the accused did not heed to their request but, shouted at them not to meddle with the water as the boat may lose its balance. When they had almost crossed the river, the boat capsized and five persons drowned to death.

The defense of the appellants'' counsel is, it was due to the act of god (misnomer) the boat capsized. In this regard, the evidence of a series of witnesses point out the guilt of the accused. It appears, nearly as many as fifteen persons were allowed to occupy the board by collecting Rs. 5/- from each person. Whether the boat had the capacity to reach the destination with that many passengers and whether it was in a fit condition ought to have been examined. The owner of the boat who was navigating the vessel ought to have visualised the situation of drowning due to overload and expected untoward incident on account of using a boat unfit for navigation. Might be with an apprehension that the boat would lose balance and drown the accused did not allow anybody to remove the water.

First of all, it is seen any number of passengers ought not to have been taken on board when the boat''s capacity was very much restricted to carry few number of passengers. Secondly, the vessel was not in a fit condition to be used as there were some perforations due to which water seeped in. As is rightly held by the trial court, the owner and navigator of the vessel should have visualised the situation and possibility of an untoward incident rather, due to negligence and carelessness on their part, the boat capsized in the river resulting in loss of five innocent lives. The evidence of the witnesses who are eye witnesses to the incident and who were rescued from the river also is clear that there was negligence which lead to the mishap and misery. S. 304A, IPC deals with death due to negligence and reads, whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide is punishable with imprisonment of either description which may extend to two years or with fine or both. The case on hand is an example of sheer negligence and so also an act of rashness. In that view of the matter, I do not find any illegality in the order of conviction and sentence passed for the offence under S. 304A, IPC. So far as imposition of sentence is concerned, i.e., by way of paying fine is concerned, having regard to the number of deaths caused, I do not find any harshness in the sentence to pay fine. Appeal is dismissed being devoid of merits. However, the accused are entitled to the benefit of set off under S. 428, Cr.P.C.