JUDGMENT

Dated this the 26 th day of February, 2021 Five score and more young children, along with a dozen teachers went on a fun and frolic for an entire day through the picturesque places around Kothamangalam town. As dusk was setting in, the group decided to wind up their picnic with a short boat ride through the bewitching Periyar river near Thattekkadu.

2. The much awaited picnic which ought to have ended with the boat ride, unfortunately ended in snuffing out the lives of 15 of those young children and three teachers. Water is alleged to have seeped into the boat resulting in its capsize and causing death by drowning of the passengers. What started as great fun for all, ended in a watery grave, at least for a dozen and a half. The news of the tragedy sent waves of sorrow sweeping across the State and tears trickling down those who heard it.

3. The boat driver was blamed by the police and was charged with culpable homicide not amounting to murder. The court which tried the offense, though had modified the charge to include rash and negligent act causing death also, as an additional charge, found the offender guilty for culpable homicide not amounting to murder. He challenges his conviction and sentence in this appeal.

4. The above description, though brief, sums up the issue that has arisen for consideration. However, for the purpose of completeness, the following is narrated as facts of the case.

The prosecution alleged that on 20.2.2007 at 6.05 pm, the accused, who was the owner as well as the driver of a boat by name

“Sivaranjini”, having a passenger capacity of 6 persons, carried 61 persons including 53 students, 7 teachers and 1 non-teaching staff of Elavoor St.Antony's U.P. School and that due to overloading while the boat was being turned to return, water started seeping through a hole at its rear end and the boat capsized and sank in the river causing the death of 18 persons including 15 children. The accused was alleged to have committed the offence under Section 304 IPC. After committal of the case to the Sessions Court, charges were framed under Sections 304, 280 and 304A IPC also, to which the accused pleaded not guilty.

5. In order to prove the prosecution case, PW1 to PW67 were examined and Ext.P1 to Ext.P81 were marked while the defence

examined DW1 and marked Ext.D1 to Ext.D8. Material objects were marked as MO1 to MO10.

6. The learned Sessions Judge, after elaborate consideration, found the accused guilty for the offence under Section 304 IPC and sentenced him to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.1,50.000/-. The fine amount, on realisation, was directed to be paid equally to the parents of the deceased children as compensation under Section 357(1)(b) of the Cr.P.C.

7. Aggrieved by the conviction and sentence of the accused as stated above, this appeal has been preferred.

8. We have heard Adv.C.P.Udayabhanu, learned counsel for the appellant and Smt.Sylaja S.L., learned Public Prosecutor for the State. Since the parents of two of the victims were permitted to assist the prosecution, we heard Adv.Dheerendra Krishnan K.K. and

Adv.S.Rajeev on their behalf.

9. Adv.C.P.Udayabhanu, learned counsel for the appellant, contended that the prosecution had miserably failed to prove the guilt of the accused. The learned counsel also argued that the ingredients of Section 304 IPC were not attracted in the instant case and nothing was brought out in evidence that could attribute knowledge to the accused that the act done by him would cause the death of the children. He relied upon the inconsistent evidence of the students as well as the teachers and argued that the accident occurred due to the action of the passengers and since the act of the accused was not the direct cause of the accident, conviction even under Section 304A of the IPC is not warranted in the instant case.

10. The learned Public Prosecutor Smt.Sy