• Case title: Abdul Ansar vs State of Kerala
• Date of Order: July 5 2023

Bench: J.(Abhay S. Oka)

J.(Rajesh Bindal)

Parties: Abdul Ansar (Appellant) v. State of Kerala  (Respondent)

SUBJECT

• When Josia, a student in the eighth grade, fell and landed beneath the left rear wheel of the bus, the appellant, accused No. 2, was operating a stage carriage bus at the time. The defendant claimed that they drove off without waiting for PW-1.
• The SC decided that by failing to check for passenger boarding before signalling the driver, the appellant acted carelessly and negligently. According to Section 338 of the IPC, the offence carries a sentence of up to two years in prison.

IMPORTANT PROVISIONS

• The Kerala Motor Vehicle Rules, 1989, under the Motor Vehicles Act, 1988, outline conduct, duties, and functions of conductors, requiring them not to interfere with persons preparing to mount or mount on any vehicle.

OVERVIEW

• The appellant, accused No. 2, was the driver of a stage carriage bus, accused No. 3, the conductor, and accused No. 3, the cleaner.
• Josia, an injured 8th-standard student, and her younger sister, Jovan, were waiting at a Karithambu bus stop for school. Jovan boarded the bus, followed by two other girls. When Josia tried to board, accused No. 3 pushed her down with his hands.
• She fell down on the road and fell under the left rear wheel of a bus, sustaining serious injuries, including a pelvis fracture.
• The appellant argued that the accused started the bus without waiting for PW-1.
•  The prosecution applied offenses punishable under Sections 279 and 308 of IPC. Sister Elsamma, a teacher working in the same school, was an important witness.
• The Additional Sessions Judge acquitted driver No. 1 but convicted appellant and accused No. 3 for the offense punishable under Section 308 and Section 34 of IPC. Both were sentenced to four years in prison with a fine of Rs.5,000/­ each. In default, a six-month prison sentence was imposed, and a sum of Rs.7,500/­ was ordered to be paid to the victim.
• The High Court acquitted accused No. 3, confirming the appellant’s conviction under Section 308 of IPC. The sentence was reduced to one year by directing a fine of Rs.50,000/­. The incident occurred in 2005, with 17 years elapsed since the date.

ISSUES RAISED

• In this appeal, the issue is whether the appellant’s conviction for the offence covered by Section 308 of the Indian Penal Code (IPC) may be upheld.

ARGUMENTS ADVANCED BY THE APPELLANT

• The appellant’s counsel argued that the offense of attempt to commit culpable homicide was not established on evidence. He claimed that accused no.3 was standing on the bus’s footboard, and allegedly physically pushed PW-1 out of the bus.
• The appellant alleged that he rang the bell, signaling the driver to start the vehicle, and accused No.1 of starting the bus. PW-1 suffered serious injuries. The appellant was acquitted, and the incident occurred on August 18, 2005, at 17 and half years old. He was incarcerated for 36 days and was on bail.

ARGUMENTS ADVANCED BY THE RESPONDENT

• The learned counsel for the respondent State emphasized that the appellant’s duty as a conductor was to ensure passengers board the bus safely at the stop. They also had a duty to close the door and signal the driver to start the bus.
• The appellant claimed knowledge of students waiting at the bus stop, indicating that ringing the bell without precautions could cause death. He cited serious injuries sustained by PW-1, but he argued that PW-1 survived and the offense under Section 308 was established.

JUDGEMENT ANALYSIS

• In the cross examination PW1 argued that her younger sister (PW-7) had boarded the bus, and she would not have boarded it if she had not. Sister Elsamma, standing at the same bus stop, decided not to board due to overcrowding.
• PW-7 did not support the prosecution, but she insisted on boarding the bus for special classes.
• The evidence shows that PW2 Sister Elsamma boarded the bus, while PW1 claimed it was packed. Both PW2 and PW7 claimed the bell rang when PW1 attempted to board. The appellant gave a signal to the driver to start the bus, even before PW1 could properly board.
• Section 308 makes an attempt to commit culpable homicide not murdering an offense. The prosecution’s case does not require the appellant’s intention to cause PW-1’s death or bodily injury. The question is whether the appellant knew that ringing the bell was likely to cause death.
• The appellant, accused no.3, acted recklessly and negligently, failing to perform his duty of being careful. He failed to verify that all passengers had properly boarded the bus before giving the signal to the driver. This negligence endangered human life and caused grievous harm to PW-1, who suffered a fracture of her pelvis.
• The appellant is found guilty of an offense punishable under Section 338 of IPC, with no prejudice caused due to sufficient notice of negligence allegations. The offense’s punishment can extend to two years.
• The High Court directed the appellant to deposit Rs.50,000/­, which was already deposited. The court proposed an additional Rs.25,000/­, modifying the impugned judgments. The appellant is found guilty of an offense punishable under Section 338 of the IPC and sentenced to six months of simple imprisonment.

CONCLUSION

• The appellant was directed to pay Rs.75,000/­, with Rs.50,000 depositing. A sum of Rs.45,000/­ will be paid to victim PW-1 as compensation, while the remaining Rs.5,000/­ will go to the State Government.
• He was directed to pay an additional Rs.25,000/­ within two months, or face a 1 month imprisonment. 
• The appellant was ordered to surrender within four weeks to be sent to prison for the remaining sentence.