| Citation | (2023) 8 SCC 175 |
| Case Number | Criminal Appeal No. 1751 of 2023 |
| Court | The Hon’ble Supreme Court of India (henceforth, SC) |
| Date of Adjudication | July 5, 2023 |
| Bench | Abhay S. Oka, Sanjay Karol, JJ. |
| Appellant | Abdul Ansar |
| Respondent | State of Kerala |
| Disposition | Leave Granted |
Brief Facts of the Case
Josia (the injured) along with her sister Jovan was waiting at the bus stop to catch a bus for their school. When the bus arrived at the stop, Jovan got on first, followed by two other girls. Due to rush, when Josia attempted to board the bus by placing one foot on the footboard, the cleaner forcefully pushed her down. As a result, she fell beneath the rear wheel of the bus, and suffered severe injuries, including a pelvic fracture. This incident was also witnessed by Sister Elsamma, who was a teacher in the same school where the girls were studying.
The accusation against the appellant, who was the conductor, was that, without allowing the girl to board the bus, he rang the bell, leading to driver starting the bus. The prosecution invoked charges under Sections 279 and 308, in conjunction with Section 34 of the IPC[1].
The Trial Court acquitted the bus driver, but convicted the conductor and the cleaner under Section 308 read with Section 34, IPC. The appeal filed before the High Court (henceforth, HC) was also rejected. However, the cleaner was acquitted, and the sentence of the Trial Court which was initially 4 years of rigorous imprisonment was reduced to 1 year of imprisonment with a fine of Rs. 50,000/-.
Not satisfied with the ruling of the HC, the appellant has now challenged the HC’s decision before the SC.
Issues Dealt With, by the SC
Whether the appellant’s conviction for the offense outlined in Section 308 of the Indian Penal Code, 1860[2] can be upheld?
Arguments of the Counsel of the Appellant
In the Hon’ble SC, following arguments were put forth by the counsel of the Appellant-
- That there was insufficient evidence on part of the prosecution to establish the offense of attempt to commit culpable homicide not amounting to murder.
- That it was alleged by the prosecution that the cleaner, who has already been acquitted by the HC pushed the girl out of the bus. The conductor, who is the appellant in the present case, believing that all have boarded the bus, rang the bell to indicate the driver, who was also acquitted by the Trial Court, to start the bus. It was contended by the counsel that if the bus cleaner has been acquitted, the conviction of the appellant can also not be sustained.
- That the present appeal be allowed and the sentence of the HC be set aside.
Arguments of the Counsel of the Respondent
In the Hon’ble SC, following arguments were put forth by the counsel of the respondent-
- That, in his capacity as a conductor, the appellant had the responsibility to ensure the safe boarding of all passengers at the bus stop. Additionally, it was asserted that the appellant’s further duty included closing the bus door and subsequently signalling the driver to start the bus by ringing the bell.
- That the appellant was aware that several students were waiting at the bus stop to board the bus for school. Consequently, it was suggested that his knowledge could imply that, by ringing the bell without exercising caution, there was a potential risk of causing harm or even death to a passenger attempting to board the bus.
- That the injuries were of a severe nature. It was however fortunate that the injured girl survived. Therefore, it is argued that the offense under Section 308 has been proven.
- That the HC has been right in holding the appellant guilty of attempt to culpable homicide not amounting to murder, and that such a judgement requires no interference of the Hon’ble SC.
Adjudication on the Matter by the SC
The SC observed that Rule 89 of the Kerala Motor vehicle Act, 1989, which was enacted under Motor Vehicles Act, 1988, which lays down the duty of the conductor to refrain from intervening with individuals who are getting on or preparing to board another mode of transportation, as emphasised by the prosecution in his argument, has no bearing and relevance in the present case.
Further, as observe during the cross examinations, both Sister Elsamma and Josia’s sister Jovan, confirmed that the bus was completely packed, and that the bell rang when the injured girl was trying to board it. Thus, it was stated by the SC that the appellant has given the signal already, even before the girl could properly board the bus.
To decide on the question whether the appellant is guilty of the offense under Section 308, IPC, it is important to assess if there was some kind of actual attempt on part of the accused to commit culpable homicide, and whether he had any intention/knowledge of the same. In the present case, it is crystal clear that there was no intention on part of the appellant to commit culpable homicide, and the same has also not been mentioned anywhere by the prosecution. Further, it was observed by the SC that even the knowledge that, by ringing the bell, the appellant would probably cause the death of the girl, also seem to be absent. Therefore, without any sort of intention/knowledge been established by the prosecution, it is not just to convict the appellant under Section 308, IPC.
By employing the principles outlined in Section 222 (2) of the Code of Criminal Procedure, 1973[3], the court can assess whether the appellant has engaged in any other offense that is of lesser magnitude compared to the offense for which they are being prosecuted. Taking note of the same, the SC opined that the appellant was guilty under Section 338, IPC[4], which lays down the punishment for causing grievous hurt by act endangering life or personal safety of others. In the instance case, it was the duty of the conductor to ensure all have boarded the bus safely, especially when it was overcrowded and there was rush. However, he failed in following his duty, and this negligence of his resulted in severe injuries sustained by the girl. Therefore, the conditions for holding a person liable under Section 338, IPC were met.
It was held by the SC that instead of convicting the appellant under Section 308, IPC, it would be appropriate if he’s punished under Section 338, IPC. Further, as he had already undergone imprisonment for 3 months after the judgement of the HC, the SC further imposed simple imprisonment of only 6 months.
Thus, the appeal was only partly allowed.
Written by Aarya Dubey an intern under legal vidhiya.
[1] The Indian Penal Code, 1860, § 34, 279, 308, No. 45, Acts of Parliament, 1860 (India).
[2] The Indian Penal Code, 1860, § 308, No. 45, Acts of Parliament, 1860 (India).
[3] Code of Criminal Procedure, 1973, § 222, cl. 2, No. 2, Acts of Parliament, 1974 (India).
[4] The Indian Penal Code, 1860, § 338, No. 45, Acts of Parliament, 1860 (India).
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