Attempt To Culpable Homicide | Conviction Under Section 308 IPC Not Sustainable If Accused Had No Intention Or Knowledge To Cause Death : Supreme Court

The Supreme Court on Wednesday modified the conviction under Section 308 (Attempt to commit culpable homicide) imposed on a bus conductor, for allegedly ringing the bell which was a signal to the driver to start the vehicle due to which the victim fell down and sustained injuries, to conviction under Section 338 (Causing grievous hurt by act endangering life or personal safety of others) of IPC on the ground that the conductor was negligent in not performing his duties and he did not have knowledge that his act is likely to cause the death of the victim.

The division bench of Justice Abhay S. Oka and Justice Rajesh Bindal observed:

“It is not possible to say that the appellant while ringing the bell, had knowledge that his act is likely to cause the death of PW1. The bus was over crowded. The cleaner was standing near the footboard. Therefore, in the absence of intention and knowledge as contemplated by Section 299 of IPC, the offence of attempt to commit culpable homicide not amounting to murder was not made out. This is not a case where if the appellant’s act would have resulted into the death of PW1, he would be guilty of culpable homicide, not amounting to murder.”

Facts

The appellant (accused no. 2) was a conductor; the accused no. 1 was the driver of a stage carriage bus and accused no. 3 was the cleaner.

The PW1 (victim) along with her younger sister PW7 were waiting at the Karithambu bus stop for boarding a bus for going to their school. According to the prosecution case, after the bus reached the said bus stop, PW7 boarded the bus followed by two other girls.

It was alleged that when PW1 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. PW1 fell down on the road and came under the left rear wheel of the bus due to which 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 Sessions Court acquitted the driver- accused no. 1. However, the Court 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. It was further ordered that out of the fine amount, a sum of Rs. 7500/- was ordered to be paid to the victim of the offence.

The appellant and accused no. 2 preferred an appeal before the Kerala High Court. The High Court acquitted accused No. 3. And 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/.

Arguments

The 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.

It was further 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.

It was argued that as accused no.3 has been acquitted by the High Court, the conviction of the appellant cannot be sustained.

On the Other hand, the Counsel appearing for the 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.

It was further submitted that the appellant had knowledge that at the bus stop, many students were waiting to board the bus to reach their schools thus, 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.

Court’s Observation

The Court noted that it is not the prosecution’s case that the appellant had any intention to cause the death of PW1 or intention to cause such bodily injury to her as is likely to cause her death.

The Court noted that the appellant acted rashly and negligently as he did not perform his duty of being careful.

The Court observed:

“At that relevant time, the bus was overcrowded. There were a number of passengers waiting at the bus stop. Therefore, it was the duty of the appellant as a conductor to take care of the passengers. Hence, before he rang the bell and gave a signal to the driver to start the bus, he ought to have verified whether all passengers had safely boarded the bus. He could have ascertained this from accused no.3- cleaner who was standing near the door of the bus. However, he did not take that precaution and care which he was under an obligation to take.”

The Court further opined that appellant knew that at the relevant bus stop, a large number of students were waiting to take the bus to reach their school and therefore, the appellant ought to have verified whether all the passengers had properly boarded the bus before giving the signal to the driver.

“However, he did not verify whether the passengers had properly boarded the bus. Therefore, he is guilty of negligence as he failed to perform his duty. In fact, this was an act of recklessness on his part. The fact is that due to the negligence on the part of the appellant, human life was endangered. Grievous hurt was caused to PW1 as she suffered fracture of pelvis,” the Court said.

Thus, the Court noted that the appellant is guilty of the commission of an offence punishable under Section 338 of IPC and sentenced him to simple imprisonment of 6 months.

However, the Court directed the appellant to pay an additional amount of Rs. 25000/- to the victim in addition to the fine of Rs. 50,000/- imposed by the High Court on the appellant.

“The appellant shall pay a total amount of Rs.75,000/out of which a sum of Rs.50,000/has already been deposited. Out of the said amount, a sum of Rs.45,000/shall be paid over to the victim – PW1 as compensation. The remaining amount of Rs.5,000/will go to the State Government. The appellant is directed to pay an additional amount of Rs.25,000/by way of deposit in the Trial Court within a period of two months from today. The said amount shall also be paid to PW1 as compensation,” the Court said.

Case Title: Abdul Ansar v. State of Kerala

Citation : 2023 LiveLaw (SC) 5l0

Click Here To Read/Download Judgment