Knowledge of likely fatal consequences in reckless driving can elevate culpable homicide to be charged under Section 304 Part II IPC instead of Section 304A IPC.

JUDGMENT :

A. Badharudeen, J.

Crl.Appeal No.1556/2007 has been filed by the State of Kerala challenging the judgment of the Assistant Sessions Court, Tirur, in S.C.No.78/2004 dated 28.02.2018 whereby the Assistant Sessions Court acquitted the sole accused of the offence punishable under Section 304(ii) of the Indian Penal Code (‘IPC’ for short hereafter) while convicting and sentencing him for the offences punishable under Sections 279, 337, 338 and 304(A) of IPC.

2. During the pendency of this appeal before this Court, at the instance of the prosecution, the accused, who had been convicted and sentenced for the offences punishable under Sections 279, 337, 338 and 304(A) of IPC, had filed an appeal before the Sessions Court, Manjeri, challenging the said conviction and sentence vide Crl.Appeal No.326/2005. However, regardless of the pendency of Crl. Appeal No.1556/2007 before this Court, the learned Sessions Judge dismissed the appeal at the instance of the accused, as per judgment dated 28.02.2018 in Crl. Appeal No.326/2005

3. Crl.R.P.No.674/2018 has been filed challenging the said verdict.

4. Heard the learned Special Public Prosecutor appearing for the appellant/State of Kerala in Crl.Appeal No.1556/2007 and the learned counsel appearing for the respondent/accused therein. Also heard the learned counsel for the revision petitioner.

5. I shall refer the parties in this appeal as well as the revision petition as ‘prosecution’ and ‘accused’ for easy reference hereafter.

6. The prosecution case is that the accused, who was the driver of a stage carriage bus bearing Reg.No.KL 11 E 3987, driven the same through GuruvayurTellicherry road along with travellers therein, who were the pilgrims of Guruvayur temple in a manner with the knowledge that driving the vehicle in such a manner, would be fatal to the travellers sitting in the bus and pedestrians and while driving so he had hit the stage carriage on the back of an Ambassador car bearing Reg.No.KLL 415, and as the outcome of the same, the bus got capsized. Out of the occurrence, 44 persons died though some among the travellers survived, with serious injuries. This is the base on which the prosecution alleges commission of the offences punishable under Sections 279, 337, 338 and 304 Part II of IPC, by the accused.

7. Upon committal of the case to the Sessions Court, the Sessions Court made over the case to the Assistant Sessions Court for trial and disposal. Thereafter the learned Assistant Sessions Judge proceeded with trial, PW1 to PW75 were examined and Exts.P1 to P129 were marked on the side of the prosecution. Thereafter, an opportunity was given to the accused to adduce defence evidence after questioning him under Section 313(1)(b) of the Code of Criminal Procedure (‘Cr.P.C’ for short hereafter), but no defence evidence was adduced. Finally, the Assistant Sessions Court found that the accused committed offences punishable under Sections 279, 337, 338 as well as 304A of IPC, while acquitting the accused for the offence punishable under Section 304(ii) of IPC.

8. The prosecution thereafter filed the present Criminal Appeal No. 1556 of 2007 contending that the Assistant Sessions Court went wrong in finding that the accused did not commit the offence punishable under Section 304(ii) of IPC, when the evidence given by the travellers in the bus clearly established that the accused had driven the bus with the knowledge that his act would likely to cause an accident and the consequential death of the travellers therein. Therefore, the contention raised by the learned Public Prosecutor is that, in the instant case, instead of Section 304A, 304(ii) of IPC would attract. The learned Public Prosecutor read out the relevant portions of the depositions of the witnesses and relied on the crucial materials therein to substantiate the contentions advanced in this regard.

9. Dispelling these contentions, it is argued by the learned counsel for the accused that, in the instant case, even though 44 perso