The Court emphasized the accused's right to challenge the evidence and the burden of proof on the prosecution, and upheld the framing of a charge under S. 302, I.P.C. based on the prosecution evidence.

The petitioner is the first accused in Crime No. 20 of 1986 of City Crime Police Station. This case was originally registered as Crime No. 29/80 of Kannamaly Police Station and the same was transferred to the Crime Detachment, Ernakulam for investigation and the case has now reached the Court of Special Judge (SPE/CBI)-II & IV Additional Session Judge as case No. 33 of 1987.

2. This petition has been filed to quash the proceedings in this case against the petitioner. The incident happened on 19-3-1980 at about 2.45 p.m. The petitioner was the owner of a motor boat by name "St. Xavier". This boat was used for ferry service between Kannamaly and Perumpadappu on that day. 19-3-1980 was the festival day in Kannamaly church. It is alleged that the boat St. Xavier, though it had only a capacity for carrying 80 passengers, took on board 300 passengers and proceeded from Kannamaly to Perumpadappu. As the boat reached the middle of the lake, water gushed into the boat. People on board cried aloud in panic and in a shortwhile the boat capsized. Most of the passengers were saved, but 30 unfortunate persons lost their lives in this incident. The prosecution would further contend that the boat St. Xavier was a condemned boat and its licence had expired on 17-3-1978 and thereafter no fitness certificate was issued. During investigation CW 2 the Canal Officer was also questioned and from the charge-sheet submitted to the Court it is seen that CW 2 has been cited as a witness to prove that the first accused was given direction not to ply this boat. CW 57 has also been cited to prove that warnings were given to the boat crew and they were directed not to ply this boat. CW 155, the Chief Inspector, has been cited to prove that this boat had no valid permit and no fitness certificate was issued after 17-3-1978. Therefore the case of the prosecution as a whole is to the effect that the petitioner herein has committed an act so imminently dangerous without any excuse and thereby caused the death of 30 persons and an offence under S. 302 has been made out on the basis of this allegation.

3. The learned counsel for the petitioner contended that charge under S. 302, I.P.C. against the petitioner is not sustainable, and even on the prosecution allegation supported by the first information report would only prove that at the most the appellant could be prosecuted only for the offence punishable under S. 304-A, I.P.C. To appreciate the contention of the petitioner a close analysis of S. 300, I.P.C. and its 4th illustration given would be necessary.

4. Section 300, I.P.C. and illustration (d) read as follows:

"300. Murder - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -

Secondly - xx xx

Thirdly - xx xx

Fourthly - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

(d) A, without any excuse, fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual."

Clause 'fourthly' of S. 300 is in respect of an imminently dangerous act which must, in all probability cause death, or such bodily injury as is likely to cause death. When that act is committed with the knowledge that death might be the probable result and without excuse for incurring the risk of causing death or injury as is likely to cause death, the offence would come within the four-corners of the definition of murder. Generally this section is applicable to a case where the accused has no intention to cause death to any particular person. The interpretation of clause 'fourthly' of S. 300 came up for consideration in Anda v. State of Rajas