Point of Law: It is settled law that sentence to be imposed in a case should be consistent with atrocity and brutality with which crime has been perpetrated, enormity of crime warranting public abhorrence and it should respond to society's cry for justice against culprit.

JUDGMENT :

This is an appeal filed under Section 378 of the Code of Criminal Procedure assailing conviction and sentence imposed under Section 304 Part II r/w 34 of I.P.C against the appellants in S.C.No.187/2004 on the file of the Additional Sessions Judge-II, Thodupuzha as per judgment dated 20.08.2007. The respondent herein is the State of Kerala.

2. Heard Smt. Santhi Prem, the learned counsel appearing for the appellants as well as the learned Public Prosecutor appearing for the State of Kerala.

3. The prosecution case: The prosecution case is that accused No.1, who had deformity on his left wrist and who did not have proper and valid driving licence, had driven bus by name Chackochi, bearing Reg.No.KL-8A 6789, from Mamalakkandam to Kothamangalam on 29.12.2002 with the knowledge that if he drives the vehicle, the same would likely to cause an accident and fatal consequences. It is alleged further that when the above bus driven by the 1st accused reached at Second Mile, Neriyamangalam-Munnar National Highway, at 7.45 a.m., the bus hit on a culvert on the right side of the road and fell to the depth (swire) on the other side of the road, thereby 5 persons travelled in the bus died and 63 passengers were seriously injured. The prosecution allegation further is that the 2nd accused, who is the brother of the 1st accused and the owner of the bus, authorised the 1st accused, who is having disability and deformity on his left hand, to move the same freely and who did not have driving licence to drive a heavy vehicle, with the knowledge that authorising such a person to drive the vehicle would likely to cause accident and fatal consequences. Thus prosecution case is that both the accused with common intention, committed offence under Section 304 Part II r/w 34 of I.P.C.

4. On the above facts, crime No.387/2002 was registered by Adimali Police Station on the allegation that accused 1 and 2 with common intention caused death of 5 persons and, thereby, accused Nos.1 and 2 committed the above offence.

5. The Dy. S.P, Mannar, investigated the crime and laid charge before the Magistrate Court accordingly. Then the case was committed to the Court of Sessions, Thodupuzha. After complying the legal formalities, the learned Additional Sessions Judge framed charge under Section 304 r/w 34 of I.P.C and recorded the evidence.

6. During trial, PW1 to PW37 were examined and Exts.P1 to P69 were marked on the side of the prosecution. After having examined the accused under Section 313 of Cr.P.C, the accused were given opportunity to adduce evidence and thereafter DW1 examined and Exts.D1 and D1(a) were marked on the side of the defence.

7. After hearing both sides, the learned Sub Judge found that accused 1 and 2 committed offence punishable under Section part II of Section 304 of I.P.C r/w 34 of I.P.C and thereby sentenced them to undergo rigorous imprisonment for a period of 5 years and set off was given to the 1st accused for the period he was in judicial custody in connection with the crime.

8. The above conviction and sentence are under challenge in this appeal. The learned counsel for the appellants would urge that the finding of the trial court that the appellants herein committed offence under Section 304 Part II r/w 34 of I.P.C is wrong and the prosecution failed to prove any offence committed by the accused and even otherwise the conviction should have been for the offence under Section 304A of I.P.C. Therefore, the learned counsel pressed for acquittal of the accused or else conversion of the conviction and sentence under Section 304A of I.P.C.

9. Whereas the learned Public Prosecutor vehemently opposed the said contention and it is submitted by the learned Public Prosecutor that in this case the 2nd accused, who is the owner of the bus authorised his brother, the 1st accused, who had deformity on his left hand and who did not possess a valid and proper driving licence to drive a heavy vehicle and in consequence thereof, the 1st accused driven t