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ABDUL ANSAR V. STATE OF KERALA

September 14, 2023by canonsphere0
1. case

This case analysis is written by Sahi Pagui, a Law Student.

Citation: SLP (Criminal) No. 2161 of 2023

Bench: Abhay S. Oka & Rajesh Bindal, JJ.

Date: 17 November 2022

FACTS

  1. In this case, the appellant, accused No. 2, along with two other co-accused, No. 1 (the driver of the stage carriage bus) and No. 3 (the cleaner), is accused of committing a serious offense. The incident involved Josia, a student studying in the 8th standard, and her younger sister Jovan, who were waiting at the Karithambu bus stop to board a bus for school.
  2. According to the prosecution’s case, when the bus reached the bus stop, Jovan boarded the bus along with two other girls. There was a rush of people trying to board the bus. While Josia was attempting to board the bus by putting one leg on the footboard, accused No. 3 pushed her down with his hands from the footboard, causing her to fall onto the road and come under the left rear wheel of the bus. As a result of this incident, she sustained serious injuries, including a pelvic fracture.
  3. The allegation against the appellant (accused No. 2) is that he rang the bell without waiting for Josia to board the bus, and this action caused accused No. 1 to start driving the bus, leading to the unfortunate incident.
  4. The prosecution applied charges punishable under Sections 279 and 308 of the Indian Penal Code (IPC), read with Section 34 of the IPC. Josia, Jovan, and Sister Elsamma (a teacher from the same school as Josia and Jovan) are key witnesses to the incident, with Sister Elsamma being an eyewitness to the event.
  5. In summary, the present appellant (accused No. 2) is accused of playing a role in the incident where Josia was injured due to the actions of accused No. 3 and the alleged negligence of accused No. 1. The prosecution has applied specific charges against the accused based on the available evidence and testimonies from important witnesses, including Sister Elsamma.

ISSUES 

  1. Is the appellant guilty of the commission of an offense punishable u/s 338 of IPC or u/s 308 of IPC?  
  2. Is the appellant liable u/s 229 of the IPC?

CONTENTIONS 

APPELLANT
  1. The appellant’s counsel argued that the evidence did not establish the offense of attempting to commit culpable homicide not amounting to murder. He claimed that accused No. 3, the cleaner, was the one standing on the footboard of the bus and allegedly pushed Josia out while she was trying to board. 
  2. On the other hand, the only allegation against the appellant was that he rang the bell, signaling the driver (accused No. 1) to start the bus, which resulted in Josia falling and sustaining serious injuries.
  3. The appellant’s counsel pointed out that accused No. 3 had been acquitted by the High Court, and therefore, the appellant’s conviction could not be sustained. The incident occurred more than 17 and a half years ago, and the appellant has already spent 36 days in incarceration, being on bail for the rest of the time.
RESPONDENT
  1. The respondent State’s counsel argued that as a conductor, it was the appellant’s duty to ensure the safety of all passengers boarding the bus at the bus stop. 
  2. The counsel claimed that the appellant knew many students were waiting to board the bus for school and, therefore, should have been cautious. 
  3. By ringing the bell without taking precautions, the appellant could have caused the death of a passenger trying to board. The counsel emphasized the serious injuries sustained by Josia, though she fortunately survived, and contended that the offense under Section 308 was established.
  4. In summary, the appellant’s counsel asserted that the evidence did not support the charges against the appellant, while the respondent State’s counsel argued that the appellant’s actions as a conductor were negligent and resulted in serious injuries to Josia, justifying the offense under Section 308.

JUDGEMENT

In this case, the appellant is found guilty of committing an offense punishable under Section 338 of the Indian Penal Code (IPC). The appellant was aware of the allegations of negligence against him during the trial, so the omission to frame a specific charge under Section 338 of IPC does not prejudice him.

The offense under Section 338 of IPC carries a potential imprisonment period of up to two years. However, considering that the incident occurred in 2005 and the appellant has already served a sentence of 36 days,a simple imprisonment is deemed of six months as an appropriate punishment in this case.

The appellant had  thus deposited Rs. 50,000/- as per the High Court’s directions for compensation. Given the serious injuries sustained by Josia at the age of 13, it is believed that she should be adequately compensated. Therefore, in addition to the already deposited amount, the appellant is directed to deposit an additional sum of Rs. 25,000/-.

ISSUE 1
  1. During the relevant time, the bus was overcrowded with several passengers waiting at the bus stop. As a conductor, it was the appellant’s duty to take care of the passengers. Before ringing the bell and signalling the driver to start, he should have verified if all passengers had boarded safely. He could have done so by checking with accused No. 3, the cleaner, standing near the door of the bus. However, the appellant neglected this duty and acted recklessly, endangering human life.
  2. As many students were waiting to board the bus for school, the appellant should have been more cautious. Due to his negligence, Josia suffered grievous hurt, including a pelvic fracture. Based on these circumstances, the appellant is found guilty of an offense punishable under Section 338 of the IPC, which carries a maximum imprisonment of two years.
  3. However, the appellant had sufficient notice of the allegations of negligence during the trial, so the omission to frame a specific charge under Section 338 of the IPC will not be fatal to his case. Considering the incident that occurred in 2005 and other factors, a sentence of six months of simple imprisonment is deemed appropriate.
  4. The appellant had already served 36 days of incarceration, which will be considered for set-off. In addition to the Rs. 50,000/- fine already deposited as directed by the High Court, an additional amount of Rs. 25,000/- will be deposited to adequately compensate PW-1 for her serious injuries.
  5. Consequently, the appellant’s conviction is modified from Section 308 to Section 338 of the IPC. He shall undergo a six-month simple imprisonment, with a set-off for the period already served.
ISSUE 2
  1. The prosecution’s case is not based on the appellant having any intention to cause the death of Josia or cause bodily injury likely to cause her death. The key question is whether the appellant knew that ringing the bell could lead to death. 
  2. However, there is no evidence to suggest that the appellant knew his act of ringing the bell would result in Josia’s death. The bus was overcrowded, and the cleaner was standing near the footboard. 
  3. According to Section 299 of the Indian Penal Code (IPC), culpable homicide not amounting to murder requires both intention and knowledge. In this case, neither intention nor knowledge to cause death is established.
  4. It is essential to clarify that the appellant cannot be found guilty of culpable homicide not amounting to murder, even if Josia’s death resulted from his actions.
  5. Under Section 222(2) of the Code of Criminal Procedure, 1973 (CrPC), the Court can consider whether the appellant committed a minor offense compared to the one he is being tried for.
  6. Thus, the appellant cannot be charged with culpable homicide not amounting to murder due to the absence of intention and knowledge. The Court may consider if any lesser offense has been committed by the appellant under Section 222(2) of the CrPC.
  7. The Prosecution relied on the Kerala Motor Vehicle Rules, 1989, which are framed under the Motor Vehicles Act, 1988. Rule 89 outlines the conduct, duties, and functions of conductors. However, Clause (o) of Rule 89, which prohibits interference with people mounting or preparing to mount another vehicle, is not applicable to this case.

CONCLUSION

This case is a milestone judgment which highlights the importance and remedies for the offense committed under the Indian Penal Code, especially highlighting the conviction in Section 338 of the IPC. This Supreme Court Case named, “Abdul Ansar v. State of Kerala” is a judgment which provides emphasis on Intention or Knowledge necessary for conviction u/s 338 of IPC. However, there are arguments and conflicts on the part of the party aggrieved and the parties are held liable for the commitment of the said offense. It is thus important to draw out and illustrate a clear picture of how the Indian Law can defend the parties aggrieved and punish the accused. However, the provisions and remedies under the said case are thoroughly recognized and valid under Indian Law.

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