Point of Law : Rule 89(o) of the Kerala Motor Vehicle Rules casts a duty on the conductor to ensure safety of the passengers and not to interfere with the passengers mounting the vehicle.

JUDGMENT :

Challenge in these appeals is to the judgment of conviction and order of sentence dated 28.04.2006 passed by the Additional Sessions Judge (Ad hoc)-I, Kottayam in S.C.No.32 of 2006. The appellants were found guilty and convicted for the offence punishable under Section 308 read with Section 34 of the Indian Penal Code, 1860. They were sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.5,000/-with a default sentence of rigorous imprisonment of six months. The amount of fine, if realised, was directed to be paid to the injured, PW1, as compensation under Section 357(1) of the Code of Criminal Procedure, 1973.

2. In these appeals, filed under Section 374(2) of the Code, the conviction and sentence of the appellants are impugned on the ground that without there having any evidence regarding the way in which the incident occurred and also the identity of the appellants, the trial court has convicted and sentenced them and thereby committed illegality.

3. There were three accused in the case. The 1st accused was acquitted of all the charges. The 2nd accused and 3rd accused, who are convicted, filed Crl.Appeal No.913 of 2006 and Crl.Appeal No.915 of 2006 respectively. Both the appeals having arisen from the same judgment, are disposed of by this common judgment. The appellants are referred to as the 2nd accused and 3rd accused for convenience.

4. The case of the prosecution, in brief, is as follows: The 1st accused was the driver of a stage carriage bus bearing Reg.No.KL-5-S-3324. The 2nd accused was the conductor and the 3rd accused was the cleaner of that bus. On 18.08.2005 at or about 9.00 a.m., the bus on its trip from Ettumanoor to Kottayam, stopped at the bus stop at Karithas Junction for alighting and boarding passengers. While PW1 was boarding the bus, the 2nd accused gave the signal by ringing the bell and the 1st accused moved the bus forward. The 3rd accused obstructed PW1 from entering the bus. When the bus moved forward, PW1 who was entering the bus, lost her grip and fell down from the foot-board causing to ran over her body the rear wheel of the bus. She thereby sustained serious injuries. It is further alleged that the accused had the knowledge that by their acts there was every likelihood of causing death of the passengers, who were trying to board the bus.

5. The injured, PW1, was removed to the nearby Matha Hospital and thereafter to the Medical College Hospital, Kottayam, where she was treated as an inpatient. PW2, another passenger waiting for the bus in the same bus stop, accompanied PW1. The police on receipt of intimation proceeded to the Medical College Hospital and on finding PW1 unconscious, recorded the statement of PW2. PW13 thereafter registered crime No.362/2005 of Ettumanoor Police Station. PW14 conducted the investigation and submitted a final report.

6. PWs.1 to 13 were examined and Exts.P1 to P17 were marked on the side of the prosecution. On the close of the prosecution evidence, the accused were examined as provided in Section 313(1)(b) of the Code. They denied the incriminating circumstances in evidence, which were put to them. All of them denied their involvement in the incident and thereby put forth a defence of total denial. No defence evidence was let in.

7. Heard the learned counsel appearing for the appellants and also the learned Public Prosecutor.

8. The learned counsel appearing for the appellants would contend that the evidence let in by the prosecution was totally insufficient to prove the involvement of either of the appellants in the incident. Both the learned counsel did not deny the occurrence of the incident. Their contention is that identity of the appellants was not proved by reliable evidence and the trial court acting upon unreliable evidence and surmises entered into a finding that the 2nd accused was the conductor and 3rd accused was the cleaner at the time of occurrence and they were responsible for PW1 falling down from the bus