Partly allowed

Saneesh Baby v. State of Kerala

Kerala HC8 Apr 2024CRL.A/565/2011

Case brief

AI extract

What is this about?

Bus driver convicted for culpable homicide after his bus hit a motorcycle, killing one rider. The High Court held there was no knowledge of likely fatal injury, altering conviction to causing death by rash driving (S.304A) and grievous hurt by rash driving (S.338), with reduced concurrent sentences.

What did the court decide?

Conviction altered to Ss.304A and 338 IPC; SI 1½ years + Rs.10,000 fine (S.304A) and SI 6 months + Rs.5,000 fine (S.338), concurrently; set-off allowed; fine to heirs of deceased.

Saneesh Baby Vs State of Kerala — Motor Accident Claims | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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MONDAY, THE 8^TH DAY OF APRIL 2024 / 19TH CHAITHRA, 1946

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CRL.A NO. 565 OF 2011

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AGAINST THE JUDGMENT DATED 25.03.2011 IN SC NO.461 OF 2009 OF VTH ADDITIONAL SESSIONS JUDGE, ERNAKULAM.

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APPELLANT:

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SANEESH BABY S/O.BABY,THANNICKAL VEEDU, NEAR MAMALA KAVALA,PAZHOOR KARA, PIRAVOM VILLAGE. BY ADV SRI.BENNY JOSEPH SRI.T.B.MOHAMMED ANVARSHAH

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RESPONDENT:

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STATE OF KERALA REPRESENTED BY THE PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY ADV PUBLIC PROSECUTOR

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ADV.SEENA C - GOVERNMENT PLEADER

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl. Appeal No.565 of 2011

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P.G. AJITHKUMAR, J.

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Crl. Appeal No.565 of 2011

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-------------------------------------------------

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Dated this the 08^th day of April, 2024

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JUDGMENT

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The sole accused in S.C. No.461/2009 on the files of the Sessions Court, Ernakulam is the appellant. He was tried by the Additional Sessions Judge-V, Ernakulam on a charge for the offence punishable under Sections 304 and 308

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of the Indian Penal Code, 1860. As per the judgment dated 25.03.2011, the appellant was found guilty for the offence punishable under Sections 304 Part II and 308 of the IPC and sentenced. The said judgment of conviction and the order of sentence are assailed in this appeal filed under Section 374(2) of Code of Criminal Procedure, 1973.

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The prosecution was launched with the following allegations:

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The appellant was the driver of bus bearing Reg. No.KL3/G 658. He was driving the bus from Vettikkad to Paingarappilly along Mulamthuruthi-Piravam road. When the

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motorcycle bearing Reg.No.KL-N 4553 ridden by one Sri.Sajan with PW1 on the pillion reached Paingarappilly junction, the bus came from behind at an enormous speed and hit at the motorcycle. As a result of the hit, both of them sustained injuries and Sri.Sajan succumbed to the injuries. The incident had occurred since the bus was driven by the appellant with the knowledge that by driving the bus in such a manner, there was every likelihood of causing injuries to the riders of the motorcycle resulting in their death.

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At the trial, PWs 1 to 13 were examined and Exts.P1 to P13 were marked. On the close of the prosecution evidence, the appellant was questioned under Section 313(1) (b) of the Code. He denied all the incriminating circumstances that appeared against him in evidence. He further stated that while negotiating the curve the rider of the motorcycle lost his control and the motorcycle skidded. Thereby the riders sustained injuries. The appellant denied having driven the bus. DW1 was examined and Exts.D1(a) to D1(d) were marked on the defence side.

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The trial court, after considering the evidence, entered a finding that the appellant was the driver of the bus, and he drove the bus with sufficient knowledge about the likelihood of it hitting against the motorcycle and its obvious consequence of causing fatal injuries to its riders. Accordingly, the trial court convicted the appellant.

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Heard the learned counsel for the appellant and the learned Public Prosecutor.

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The learned counsel for the appellant would assail

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the findings of the trial court essentially on the grounds that the evidence of PWs 1 to 3 was totally insufficient to prove the identity of the driver of the bus and even a hit by the bus at the motorcycle. It is submitted that there was no possibility for PW1, the pillion rider of the motorcycle, to see the driver of the bus which came behind and the evidence on record probabilises that PWs 2 and 3 are planted witnesses. Both of them are persons having acquaintance with the deceased and therefore they came to court and gave false evidence. On a close appreciation of their evidence, it can be concluded that

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they did not see the incident, the learned counsel submits. The further submission of the learned counsel for the appellant is that at the place of occurrence, the road has a curve. From the oral testimony of PW11, Village Officer, and Ext.P9, the site plan it can be seen that the road near the place of occurrence has a sharp curve. While the deceased was negotiating that curve, the right foot rest of his motorcycle hit the road and that caused its skidding and the overturn. It is further submitted that from the scene mahazar, Ext.P2, the damage caused to the right foot rest of the motorcycle is evident which probablised the skidding of the motorcycle as contended by the appellant and also that the bus did not hit the motorcycle.

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In the evidence of the Motor Vehicle Inspector, PW6 and his reports, Exts.P6 and P7 there is no indication suggesting a hit by the bus on the motorcycle and that also supports the case of the appellant. The further submission of the learned counsel for the appellant is that even if the version of PWs 1 and 3 concerning speed of the bus is

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believed, the bus would have been at a apeed of about 50 Kilometers per hour and therefore it cannot be said that speedy driving of the bus was the reason for the incident. Accordingly, the learned counsel submits that evidence is totally insufficient to convict the appellant for the offences punishable under Sections 304 Part II or 308 of the IPC, and the appellant deserves an acquittal.

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The learned Public Prosecutor, on the other hand, would submit that the evidence of PW2, a passenger of the bus, and also PW3, a motorcyclist, who was following the bus for some distance before the incident, about its speedy and rash driving, is sufficient to establish that its driver was guilty. Such a driving of the bus, in their view, would have the inevitable consequences of causing fatal injuries to the other users of the road. PW1 also deposed that the bus was coming from behind at such an enormous speed and he asked the deceased to swerve the motorcycle to the left side so as to give it a way and avoid it hit at their motorcycle. It is his further version that soon the hit occurred and in the view of

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the learned Public Prosecutor that evidence sufficiently proved the rash way in which the bus was driven. After referring to the scene mahazar and description regarding the tyre mark on the road it was further submitted by the learned Public Prosecutor that the bus was driven in a totally culpable manner and therefore the findings of the trial court are correct.

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Regarding the identity of the driver of the offending bus, it is pointed out that versions of PWs 1 to 3 are quite trustworthy. Exts.P8 and P8(a) are also placed reliance on in that regard. Exts.P8 and P8(a) are the trip sheets in the bus on 26.02.2009 and 27.02.2009. PW4, the conductor, deposed in court, subscribing to the entries therein and therefore the said evidence supports the oral testimonies of PWs 1 to 3 in that regard, according to the learned Public Prosecutor.

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As stated, PW1 was the pillion rider of the motorcycle, which was ridden by the deceased Sri. Sajan. PW1 deposed that while they were approaching Paingarappilly, he saw the bus coming behind at an enormous speed. He

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asked Sajan to move the motorcycle further left and within a short time, the bus came and hit the motorcycle. He was dragged by the bus for some distance and then only the bus stopped. It is his version that only due to the careless driving by the driver, the bus hit the motorcycle. He added that he was a frequent traveller in that bus and he knew its driver and other crew members. He asserted that while sitting on the motorcycle, he could see in the rear view mirror the driver of the bus and, he duly identified the appellant in court as the driver.

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PW2 was a passenger in the bus. He deposed that while the bus reached Paingarappilly junction, the bus had hit against a tipper lorry and it occurred due to the negligence of the appellant. Therefore, the passengers asked the conductor of the bus to instruct the driver not to speed up. Despite instruction by the conductor, the appellant drove the bus at a high speed and after a short while the incident had occurred. He maintained that he did not see the bus actually hitting the motorcycle but he could realise the hit. Immediately, the

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driver applied the handbrake, alighted and ran away. PW2 also identified the appellant before the court as the driver of the bus. PW3 was riding a motorcycle just behind the bus. It is his version that the bus came overtaking his motorcycle and in front of him, it had hit the motorcycle ridden by the deceased Sri. Sajan. His version is that he did not actually see the bus hitting against the motorcycle, but from behind the bus, he heard the sound and could realise that the bus hit against the motorcycle. PW3 also identified the appellant as the driver of the bus.

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12. A few contradictions and inconsistencies are

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pointed out in the evidence of PWs 1 to 3. It is true that there occurred a few omissions in their oral testimonies with respect to the matters transpired just prior to the incident. Going by the evidence on record PW1 was dragged a little by the bus after the hit. Not only PW1 but PW3 also stated regarding that. PW2 deposed that when he came out of the bus, he saw PW1 underneath the bus. His further version is that he along with the help of others, after releasing the handbrake pushed

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forward the bus and took out PW1 to be taken to the hospital. From the said narration, it is quite evident that after hitting the motorcycle, PW1 was dragged by the bus for some distance and then only the bus stopped.

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In the above context, narration regarding the place of occurrence in Ext.P2, scene mahazar needs reference. The road at the place of occurrence has a width of 6.45 meters. The place of incident is 2.6 meters towards south from the northern tar end. The road at the place of the incident is a curve. Both motorcycle and bus were coming negotiating that curve. The motorcycle was found about 10 metres away from the place of occurrence, and the bus was seen stopped 12 metres further from the motorcycle. It is mentioned in Ext.P2 that from the place of occurrence, a tyre mark at a length of 6.5 metres was left on the road. It is indicative that forceful applying of brake was required to stop the bus and that had resulted in such a long tyre mark.

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The learned counsel for the appellant submitted that the bus did not have enormous speed as is evident from the

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versions of PWs 1 to 3. PW2 deposed that the speed of the bus, in his estimation, was above 50 K.Ms per hour. Such a speed is not enormous. However, from the fact that the bus could not immediately after the incident be stopped, and it left a tyre mark at a length of 6.5 metres, certainly would prove that the bus was being driven at the time of occurrence at an uncontrollable speed.

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In the report of the motor vehicle inspector, only damage noticed on the motorcycle was a scratch mark on its right brake lever and handle. The bus had no visible damage. However, the evidence adverted to above would establish that

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it was as a result of the knocking down by the bus the motorcycle overturned and the riders sustained injuries. The contention of the learned counsel for the appellant that footrest of the motorcycle hit at the road causing it to be skidded is quite improbable. Lack of damage to the bus cannot be a reason to discard the prosecution case altogether. When evidence of PWs 1 to 3 stands reliable despite searching cross-examination, it can be concluded that the prosecution

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has proved beyond doubt that, as a result of the bus hitting the motorcycle, its riders sustained injuries. While Sri. Sajan was thrown away, PW1 was dragged a certain distance by the bus. Both of them sustained serious injuries. Regarding the cause of death of Sri. Sajan there is no contest from the part of the appellant.

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As stated above, the prosecution proved that Sri. Sajan and PW1 sustained serious injuries by the hit of the bus driven by the appellant on their motorcycle. Sri.Sajan succumbed to such injuries. The question remains is does that act of the appellant amount to an offence of culpable homicide, not amounting to murder? Evidently, while the bus was negotiating the curve, it hit the motorcycle. The motorcycle was also negotiating the curve. Knowledge about likelihood of causing fatal injuries to the victims, and the obvious result would be their death cannot readily be attributed to the appellant. Here, the bus happened to hit the motorcycle, not due to any purposeful act of the appellant. A hit at the motorcycle occurred as the appellant drove the bus

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at a speed without taking sufficient care so as to avoid a hit at the motorcycle while negotiating the curve. From the facts and circumstances, it cannot be said that there was knowledge on the part of the appellant to cause bodily injuries to Sajan and PW1, which would have resulted their death. Therefore, the conviction of the appellant for an offence under Sections 304 Part II and 308 of the IPC is incorrect. Whereas, the act of the accused certainly was so rash, and on account of such a rash driving, the bus hit the motorcycle, resulting in

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the death of Sri. Sajan and injuries to PW1. From the evidence of PW7, doctor and Ext.P4, it is proved that PW1 sustained serious injuries, including fractures of bones and thereby he had sustained grievous hurt. Therefore, the offence the appellant had committed is punishable under Sections 304A and 338 of the IPC.

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Accordingly, appeal is allowed in part. The appellant is convicted for the offences punishable under Sections 304A and 338 of the IPC instead of Sections 304 part II and 308. The appellant is sentenced to undergo simple imprisonment

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for a term of 1½ years and to pay a fine of Rs.10,000/- for the offence under Section 304A of the IPC and to undergo simple imprisonment for a period of 6 months and to pay a fine of Rs.5,000/- for the offence under Secction 338 of the IPC. The substantive terms of the sentence shall run concurrently. In default of payment of fine, respectively, the appellant has to undergo simple imprisonment for a period of two months and one month. Set off of the allowable period is allowed under Section 428 of the Code. The fine, if realised,

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will be divided among the legal heirs of the deceased.

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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SMF

Saneesh Baby v. State of Kerala

Case brief

What is this about?

What did the court decide?

Saneesh Baby v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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