IMPORTANT POINT
When the provisions of the IPC draw a clear distinction between the offences that would fall under Section 304 Part II and Section 304A, grave injustice would be caused to the accused in an occurrence involving a motor vehicle, if brought under Section 304 Part II unjustifiably. The onerous task of this court in the aforesaid background is to find out whether the accused was driving the vehicle at the relevant time in a rash manner sufficient to attribute on him knowledge of the consequences which would bring the act within the scope of Section 304 Part II of the IPC.

JUDGMENT :

The sole accused in S.C. No.21 of 2011 on the files of the Special Court for the Trial of Offences Against Women and Children, Thalassery has come up in this appeal challenging his conviction and sentence in the said case.

2. The indictment against the accused is that on 04.12.2008, at about 16.15 hours, the accused who was driving a goods van through the wrong side of the State Highway leading to Iritty from Irikkur at a frightful speed has knocked down 21 school children from behind and thereby caused the death of 10 children and injured 11 children and thus committed culpable homicide not amounting to murder punishable under Section 304 of the Indian Indian Penal Code (the IPC).

3. On the accused pleading not guilty of the charge levelled against him, the prosecution examined 49 witnesses on its side as PWs.1 to 49 and proved through them as many as 49 documents as Exts.P1 to P49. Among the witnesses examined on the side of the prosecution, PWs.1 to 4 are persons who have been examined to prove the occurrence, PW34 is the Joint Regional Transport Officer concerned and PW47 is the investigating officer in the case. Among the documents proved, Ext.P4 is the scene mahazar. The accused was, thereupon, questioned by the court under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating evidence brought out by the prosecution. The accused denied the same and maintained that he is innocent. Since the trial court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused did not, however, adduce any evidence.

4. On an appraisal of the materials on record, the court below found the accused guilty of the offence punishable under Section 304 Part II of the IPC and convicted him for the said offence. He was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-and in default of payment of fine, to undergo rigorous imprisonment for three months, for having caused the death of each of the ten children in the occurrence. Since the deaths occurred in the same incident, the court directed the substantive sentences imposed on the accused to run concurrently. As noted, the accused is aggrieved by his conviction and sentence.

5. Heard the learned counsel for the accused as also the learned Public Prosecutor.

6. The learned counsel for the accused has made elaborate submissions on the factual as also the legal aspects of the case. In the course of the submissions, the learned counsel has not disputed the occurrence or the death of the children in the occurrence. Similarly, the counsel did not dispute the fact that the accused was driving the vehicle involved in the occurrence at the relevant time. The essence of the submissions made by the learned counsel was that the occurrence was only an accident and since the accused was driving the vehicle which is a lawful act in a lawful manner by lawful means and with proper care and caution, he is not liable to be punished under any of the provisions of the Indian Penal Code. The learned counsel has elaborated the said submission pointing out that in order to convict the accused for the offence punishable under Section 304 Part II of the IPC, in the absence of any case for the prosecution that the accused intended to cause the death of the children or cause such bodily injury to the children as is likely to cause their death, it was incumbent upon the prosecution to prove that the accused knew that he is likely by his act of driving the vehicle to cause the death of the children, and the prosecution has not established the said fact in the case. It was also pointed out by the learned counsel that the evidence on record do not even make out a case of rashness or negligence on the part of the accused in driving the vehicle and that the accused cannot, therefore, be convicted even for the offence punishable under Section 304A of the IPC.

7. Per cont