Abdul Ansar v. State of Kerala

1. Leave granted.

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

3. The present appellant is accused No. 2. The accused 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 studying in 8th standard. She along with her younger sister Jovan, PW­7, were waiting at the Karithambu bus stop for boarding a bus for going to their school. According to the Criminal Appeal @ S.L.P. (Crl.) No.2161 of 2023 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 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 submitted that the incident occurred on 18th 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.

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 me. Jovan was studying in 7th 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 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 other vehicle. Clause (o) is obviously not applicable to this case.

10. It is borne out from the evidence of PW­2 Sister 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.