ABDUL ANSAR Vs. STATE OF KERALA

{Criminal Appeal No. 1751 of 2023}

FACTS OF THE CASE:

In the aforementioned case, 

• Accused no. 1 was the bus driver, 
• Accused no. 3 was the cleaner,
• Accused no. 2 i.e., the appellant in the impugned case was the conductor of the bus,
• PW 1 – Josia i.e., the injured,
• PW 7 – Jovan; sister of PW 1

PW 1 i.e., the victim in the impugned case was in 8^th standard at the relevant time, was waiting at Karithambu bus stand along with her sister i.e., PW 7, in order to board the bus for reaching the school. As per the prosecution, when the bus arrived at the bus stop PW 7 boarded the bus, while PW 1 wasn’t able to board it due to the rush for boarding the bus. When PW 1 tried to board the bus by putting one leg on the footboard, she was pushed down by accused no. 3 as a result of which she fell down on the road and came under the left rear wheel of the bus, sustaining severe injuries including fractures in her pelvis.

The appellant herein was accused of ringing the bell (as a sign to the driver to start the bus) without assuring that whether all the passengers have safely boarded the bus or not. 

The learned Additional Sessions Judge acquitted accused no. 1 whereas the cleaner and the conductor (accused nos. 2 & 3) were convicted under the offences punishable under section 279 and 308 read with Section 34 of the Indian Penal Code. They were sentenced to rigorous imprisonment for a period of 4 years and a fine of Rs.5,000/- each, and in case of any default payment they have to undergo an additional imprisonment of 6 months. 

Challenging the said judgement an appeal was filed before the High Court by the appellant and accused no. 3. The High Court wherein acquitted the accused no. 3 i.e., the cleaner while confirming the conviction of the appellant under Section 308 of IPC, reducing the period of sentence to 1 year. The High Court also directed him to pay fine of Rs.50,000/-.

The impugned case was then brought before the Hon’ble Supreme Court of India.

ISSUES:

Before the Apex Court the following issue was raised:

• Whether the conviction of the appellant under Section 308 of IPC can be sustained or not?

ARGUMENTS:

Appellant’s Argument: The learned Counsel appearing on behalf of the appellant consciously stated that as per the evidence the offence under Section 308 of IPC couldn’t be established against the appellant. 

Arguing that the conviction of the accused wasn’t sustainable, the counsel appearing on his behalf submitted that since the accused no. 3 was acquitted, despite of the fact that it was the cleaner i.e., the accused no. 3 who not only didn’t help PW 1 but also pushed her down which eventually resulted in the accident of the victim, causing her injuries.

He also submitted before the Hon’ble Supreme Court of India that the appellant has also undergone incarceration for a period of 36 days.

Respondent’s Argument: The learned counsel appearing on behalf of the respondent submitted before the Apex Court that it was the duty of the conductor to ensure that whether all the passengers has boarded the bus safely and then only shut the door of the bus. Thereafter only the conductor must ring the bell as a signal to the driver to start the bus.

He further submitted that despite of the fact that the appellant had the knowledge that at the bus stop many students were waiting to board the bus he has failed to take the necessary precautions before ringing the bell because of which PW 1 has suffered serious injuries. 

Therefore, it can be concluded that the offence under Section 308 of IPC was committed. 

JUDGEMENT:

The Apex Court after scrutinizing the facts, arguments presented by both the counsels and cross-examination of the prosecution witnesses concluded that the appellant without taking necessary precaution to prevent any casualty gave a signal to the driver to start the bus. 

Now, the question arises that whether the appellant can be convicted under Section 308 of IPC? 

Answering this question, the bench stated that for a person to be punished under Section 308 of IPC, the conditions/essentials specified under Section 299 of IPC must be satisfied. These conditions are as follow:

• There must be an act done to cause death
• Intention to cause death or,
• Intention to cause such bodily injury as is likely to cause death;
• Knowledge that such an act is likely to cause death.

As there was neither the intention nor the knowledge as contemplated on the part of the appellant, therefore the offence of culpable homicide not amounting to murder punishable under Section 308 of IPC was not established.

Further, the bench applying the principles as mentioned under Section 222(2) of the Criminal Procedure Code (CrPC), 1973 tried to ascertain that whether the appellant was punishable under any other offence other than the one for which he is tried. Applying the section, it was ascertained that the appellant was punishable under Section 338 of IPC which reads as follow:

“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.”

He was punished under section 338 of IPC as he was negligent and also failed to fulfill his duty and obligations as a conductor. Since the appellant knew that there were a large number of students and others were waiting at the bus stop, he must have verified that all the passengers have boarded the bus carefully before giving the signal to the driver to start the bus. However, the appellant failed to verify the same and was thus negligent. This negligence of the appellant has caused grevious hurt to PW 1 as she suffered pelvis fracture.

Hence, the Apex Court modifying the impugned judgement held that the appellant was punishable under Section 338 of IPC instead of Section 308. Of IPC. Under the said offence he shall undergo simple imprisonment for a period of 6 months. The appellant shall pay a total amount of Rs.75,000/- out of which Rs.50,000/ have already been paid. Ot the said amount Rs.45,000/- shall be given to the victim as compensation and the remaining amount of Rs.5,000 will go the State Government. In addition to this he was also made to pay an amount of Rs.25,000/- by way of deposit to the trial court which shall also be given to the victim as compensation and in case of any default of the payment the appellant shall undergo imprisonment for a period of one month. 

REFERENCE:

https://indiankanoon.org/doc/82584371/

This article is written by Agrima Singh of University of Lucknow, intern at Legal Vidhiya.

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