[Thattekkadu Capsize] Degree Of Knowledge For Culpable Homicide Must Verge On Certainty, Mere Knowledge That Boat Is Overloaded Insufficient: Kerala HC

A Single Judge Bench of Justice Bechu Kurian Thomas decided the appeal, finding that Raju was not guilty for the offence of culpable homicide not amounting to murder. Instead, the Court convicted him for causing death by a rash and negligent act, the rash and negligent act being that the driver had allowed 61 persons to board the boat as against the permissible capacity of six persons.

The facts

The accident, which occurred after the boat trip that marked the culmination a school picnic turned fatal, resulted in a public outcry against the driver and resultant charges for culpable homicide not amounting to murder laid against him by the police. (Section 304 of the Indian Penal Code).

The second paragraph in Section 304 prescribes a punishment of imprisonment of ten years, or fine, or a combination of the two where a person's act was done with the knowledge that it was likely to cause death but without any intention to cause death.

The prosecution alleged that Raju was guilty under Section 304, since Raju had allowed 61 persons to board the boat on that day, despite the boat having a capacity of only six persons.

Along with the charge under Section 304, the trial court additionally charged Raju for death caused by a rash and negligent act under Section 304A of the Code.

Upon consideration of evidence and examining the witness, the trial court convicted the accused under Section 304 of the Code, sentenced him to undergo rigorous imprisonment for 5 years. Additionally, Raju was directed by the Court to pay a fine of Rs. 1,50,000 to be paid equally to the parents of the deceased children as compensation under Section 357(1)(b) of the Criminal Procedure Code.

Aggrieved, Raju moved the High Court.

Arguments in Court

Raju's counsel, Advocate CP Udayabhanu, argued that the material on hand did not demonstrate that Raju had the knowledge requisite to bring home the offence under Section 304.

Claiming contradictions between the testimonies of the students and the teachers present on the boat, he asserted that the accident was attributable to the actions of the passengers.

Since the act of the accused was not a direct cause for the capsize, he could not even be convicted for a rash and negligent act, it was submitted.

The Public Prosecutor on the other hand insisted that Raju's actions fell within Section 304.

Advocate Dheerendra Krishnan KK, appearing for the parents of one of the students who were on the boat, stated that Raju modified the boat unscientifically without displaying the boat's capacity or obtaining requisite permits and a fitness certificate, which pointed to 'knowledge' necessary for Section 304.

What the Court reasoned

The Court, after a detailed discussion on the expert evidence adduced during the trial explained that merely knowing that there is overloading on a boat and there is a possibility of the boat sinking, was not the required knowledge contemplated under Section 304 IPC.

Stating that it was discernible that Raju had carried passengers beyond the limits of capacity, without proper licenses and without containing life-saving equipment in an unscientifically modified boat, the Court however emphasized that his act could not be brought within the realm of Section 304.

Justice Kurian explained,

"Knowledge of a mere possibility that the act may cause death is not the knowledge envisaged. The degree of knowledge required to bring an act within the realm of culpable homicide must be a knowledge that is almost on the verge of certainty and not a mere possibility."

Drawing on Supreme Court decisions in relation to motor accidents, the Court concluded that the prosecution had not proved beyond reasonable doubt that Raju had the level of knowledge required for conviction under Section 304.

Finding that Raju's act of allowing 61 persons on a boat whose capacity was 6 persons without safety gear, permissions etc. amounted to rash and negligent act, the Court proceeded to convict him under Section 304A.

The Court ruled,

"The accused as an owner and driver of the boat was the person directly in control of the navigation of the boat. He was the person who had knowledge of the passenger capacity of the boat. He was the person who permitted the passengers on board the boat, which was altered unscientifically. He permitted 61 persons to board the boat, knowing fully well that the capacity was only 6 passengers. He was also aware that the boat had no sufficient life jackets or other life-saving equipment to cater to 61 persons. In spite of knowing the deficiencies of the boat as stated above, if the accused permitted 61 persons to board the boat and navigated it through the waters of Periyar river having a depth of more than 6 metres, it bespeaks of a rash and negligent act. This act of navigation, in gross disregard of the consequences without sufficient precautions to guard against injury, amounts to gross negligence and rashness warranting a finding of guilt under section 304A IPC."

The Court also held that the responsibility to provide safety gear aboard the boat fell squarely upon the owner of the boat and the driver. In this light, Raju was not entitled to the benefits under the Probation of Offenders Act, 1958 and was liable for the maximum sentence that could be imposed, the Court opined.

Therefore, the accused was sentenced to undergo rigorous imprisonment for 2 years and directed to pay a fine of Rs 1,50,000. The victims were additionally allowed the liberty to approach the State Legal Services Authority and seek a higher sum as compensation under Section 357A of the Criminal Procedure Code.

On these terms the appeal was partially allowed.