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Judgment
The appellant herein is a driver of the Kerala State
Road Transport Corporation (K.S.R.T.C). He challenges the
conviction and sentence against him under Section 304A
I.P.C in S.C No.1151/2008 of the Court of Session, Thrissur.
He faced prosecution on the allegation that at about 9.30
a.m on 29.1.2008, he drove the K.S.R.T.C Bus No.KL-
15/3860 along the National Highway at Chandapura on the
Kodungallur-Guruvayoor route in high speed, and also in a
rash and negligent manner, hit down a motorcycle, which
was overtaking a tourist bus proceeding from south to
north, and the said motorcycle got sandwiched in between
the two buses. When the riders on the motor cycle fell
down, they happened to be run over by the K.S.R.T.C bus,
resulting in their death. The Police registered the crime on
the basis of the first information statement given by one of
the passengers in the said K.S.R.T.C bus, under Section 304
I.P.C. After investigation, the Police submitted final report
before the Judicial First Class Magistrate Court, Kodungallur
under Section 304 I.P.C. On committal, the case came up
before the Court of Session, from where it was made over to
the learned Additional Sessions Judge (Adhoc) I, Thrissur for
trial and disposal.
The accused appeared before the trial court, and
pleaded not guilty to the charge framed against him under
Section 304 I.P.C. The prosecution examined 13 witnesses
in the trial court, and proved Exts.P1 to P13 documents.
When examined under Section 313 Cr.P.C, the accused
denied the incriminating circumstances, and projected a
defence that the unfortunate accident occurred due to the
carelessness on the part of the rider of the motor cycle. The
accused did not adduce any evidence in defence.
On an appreciation of the evidence, the trial court
found that this is not a case of culpable homicide not
amounting to murder, but only a case of road traffic
accident that occurred due to the extreme rashness and
negligence on the part of the driver of the K.S.R.T.C bus.
Accordingly, the trial court found the accused not guilty
under Section 304 I.P.C, but he was found guilty under Section 304(A) I.P.C. On conviction thereunder, he was
sentenced to undergo rigorous imprisonment for two years
by judgment dated 10.1.2011. The said judgment of
conviction is under challenge in this appeal.
When this appeal came up for hearing, the
learned counsel for the appellant submitted that there is no
clear and satisfactory evidence to prove the prosecution
case that the alleged accident occurred due to the rashness
and negligence on the part of the accused in this case. On
legal aspects, the learned counsel submitted that when the
allegation is under Section 304 I.P.C, and the prosecution
could not prove the essentials of the offence, there cannot
be a conviction under Section 304A I.P.C, because the
offence under Section 304A I.P.C is not a lesser offence. The
learned counsel cited Vijayan v. State of Kerala [1991
(1) KLT 325] and Benny Francis and others v. State of
Kerala [1991 Crl.L.J 2411]. The learned Public Prosecutor
submitted that such an alteration is possible, in view of the
position settled by the Hon''ble Supreme Court. On factual
aspects, the learned Public Prosecutor submitted that the
witnesses examined as PW1, PW5 and PW6 have given
definite evidence proving the guilt of the accused, that he
caused the unfortunate accident by driving the vehicle
rashly and negligently.
The main witnesses in this case are PW1, PW5
and PW6. The evidence given by the other witnesses is only
formal in nature. The accused has not disputed the question
of identity of the bus driver. He being a K.S.R.T.C driver,
and the vehicle involved being a K.S.R.T.C bus, he probably
thought that it would be futile to project such a defence.
Anyway, it stands proved by evidence that the K.S.R.T.C bus
which caused the accident in this case was in fact driven by
the accused. Of course, it is true that PW1, PW5 and PW6
have not stated anything definite about the identity of the
bus driver. Anyway, Exts.P11 and P12 documents will prove
that the K.S.R.T.C bus was in fact driven by the accused.
On this aspect much discussion is not required.
Now let me see whether the offence under
Section 304 A I.P.C stands proved in this case against the
accused. PW1 was a passenger in the K.S.R.T.C. Bus. PW5
is an autorickshaw driver and PW6 is a workshop owner
The automobile workshop of PW6 is near the spot of
accident, and PW5 was driving autorickshaw from behind.
PW1 has given evidence that he had seen the
K.S.R.T.C Bus overtaking the motorcycle, and he is definite
that it was quite rashly and negligently, the accused in this
case overtook the motorcycle which was overtaking a
tourist bus proceeding in normal speed from south to north
along the eastern side of the road. There is nothing to show
that the driver of the tourist bus was in any manner
responsible for the accident. Of course,PW1 has stated
that the motorcycle had hit on the body of the tourist bus
also. But the witness is definite that the accident occurred
due to the extreme rashness and negligence on the part of
the K.S.R.T.C bus driver. In the process of double overtaking,
the K.S.R.T.C bus happened to hit down the motorcycle
which got sandwiched in between the two buses, and when
the riders fell down, they happened to be run over by the
K.S.R.T.C bus. They are husband and wife.
The evidence of PW5 is that the K.S.R.T.C bus came from behind while he was driving his autorickshaw and
when he gave side, the K.S.R.T.C. bus overtook his vehicle,
and immediately he saw the K.S.R.T.C bus overtaking a
motorcycle which was carefully overtaking a tourist bus
proceeding in normal speed along the eastern side of the
road from south to north. PW5 is definite that the K.S.R.T.C
bus happened to hit down the motorcycle only because the
K.S.R.T.C bus driver overtook the motorcycle quite rashly
and negligently. This is the evidence given by PW6 also. He
has also affirmed in evidence that the unfortunate accident
occurred, resulting in the death of two persons, only
because the K.S.R.T. C driver overtook the motorcycle in
extreme rashness and negligence.
I find that PW1, PW5 and PW6 are definite in
evidence that the unfortunate accident occurred due to the
extreme rashness and negligence on the part of the driver
of the K.S.R.T.C bus. It stands satisfactorily and properly
proved that quite unnecessarily, and with the knowledge of
consequence and in extreme rashness and negligence, the
accused overtook the motorcycle which was at that time
overtaking another vehicle. Due to this double overtaking,
the motorcycle happened to be sandwiched in between the
two buses, and the bus driven by the accused hit down the
motorcycle. When the rider and the pillion rider fell down
with the motorcycle, they happened to be run over by the
K.S.R.T.C bus. This resulted in the death of the two persons,
within no time. Thus, I find that a clear case under Section
304A I.P.C stands well proved in this case.
Now let me see the legal issue raised by the
petitioner. The question is whether the accused can be
convicted under Section 304A I.P.C in a case tried under
Section 304 I.P.C. In Vijayan''s case cited supra, a conviction
under Section 304A I.P.C in a prosecution brought under
Section 304 I.P.C was set aside by this Court on the ground
that the two are different and distinct offences. Vijayan''s
case is not a case of road traffic accident.
This is a case where the final report submitted by
the Police itself contains the necessary elements of the
offence under Section 304A I.P.C, though the charge was
brought under Section 304 I.P.C The very allegation in the
final report, and also in the charge framed by the trial court,
is that the accused caused the accident by rashly and
negligently driving the K.S.R.T.C. Bus. In Prabhakaran v.
State of Kerala [2007 (3) KLT 400 SC], a case where the
accused was convicted under Section 304 I.P.C, the Hon''ble
Supreme Court altered the conviction to one under Section
304A I.P.C, on the finding that the evidence in that case
revealed only the essentials of the offence under Section
304A I.P.C, I find that this is not a case where the
prosecution brought a clear case under Section 304 I.P.C.
The final report would practically show that the allegation
would come only under Section 304A I.P.C. The court charge
also contains the essentials of the offence under Section
304A I.P.C, though the charge was framed under Section
304 I.P.C. If the allegations in the final report and also in the
court charge, constitute the essential elements of Section
304A I.P.C, or if the accused is practically called upon to
answer the necessary elements of the offence under Section
304A I.P.C, the court can very well convict the accused
under Section 304A I.P.C.
Whether it is Section 304A I.P.C, or 304 I.P.C what
is prominently and essentially involved is causing the death
of a person. Causing death by a voluntary act will come
under Section 304 I.P.C, whereas causing the death of a
person by an act of negligence or rashness will come
under Section 304A I.P.C. I find that the court below rightly
convicted the accused under Section 304A I.P.C, on the basis
of clear evidence, though the final report was brought under
Section 304 I.P.C.
The sentence imposed by the court below is
rigorous imprisonment for two years. The licence of the
appellant was also suspended for three months. The
accused had to undergo disciplinary action also by the
Department. Now he has retired from service. He must be
now aged about 65 years. There is nothing to show that
there is any other conviction to his credit. On a
consideration of all the aspects, I find that rigorous
imprisonment for eight months will be the adequate and
reasonable sentence in this case.
In the result, the conviction against the appellant in S.C
1151/2008 of the court below under Section 304A I.P.C is
confirmed and the appeal is disposed of accordingly.
However, the jail sentence imposed by the court below will
stand reduced to rigorous imprisonment for eight months.