The question which arises in this appeal is whether the conviction
of the appellant for the offence punishable under Section 308 of the Indian
Penal Code can be sustained. The present appellant is accused No. 2. The
accused no.1 was the driver of a stage carriage bus. The appellant- accused No.
2 was the conductor, and accused No. 3 was the cleaner. PW1 was
at the relevant time studying in 8th standard. She along with her younger
sister PW7 was waiting at the bus stop for boarding a bus for going to their
school.
According to the prosecution case,100 after the bus reached the said bus stop, PW7 boarded the bus followed by two other girls. There was a120 rush for boarding the bus. When PW1 tried to board the bus by putting her one leg on the footboard of the bus, accused no.3 pushed her down with his hands while he was standing on the footboard of the bus. The girl fell down on the road and came under the left rear wheel of the bus. She sustained serious injuries including fracture of pelvis. The allegation against the appellant was that without waiting for the PW1 to board200 the bus, he rang the bell as a result of which accused No.1 started the bus. The prosecution applied offences punishable under Sections 279 and 308 read with Section 34 of Indian Penal Code.
Apart240 from PW1 and PW7, PW2 was an important witness. She was a teacher
working in the same school where PW1 and PW7 were studying. She was standing at
the same bus stop when the incident occurred and therefore, she is an eyewitness
to the incident. The learned Additional Sessions Judge acquitted the driver
- accused No. 1. However, he convicted300 the appellant and accused No. 3 for the offence punishable under
Section 308 read with Section 34 of Indian Penal Code. He sentenced both
of them to suffer rigorous imprisonment for four years with a fine of
Rs.5,000 each.
In default of payment of the fine, a sentence of rigorous
imprisonment for six months was imposed.360 Out of the fine amount, a
sum of Rs.7,500 was ordered to be paid to the victim of the offence. By the
impugned judgment, the appeal preferred by the appellant and accused no. 3 was
decided. The High400 Court acquitted accused No. 3. While confirming the conviction of
the appellant under Section 308 of Indian Penal Code, the sentence was brought
down to one year by directing him to pay a fine of Rs.50,000. The High
Court noted that the incident was of the year 2005 and a period of 17
years had lapsed from the date of the incident. The learned counsel appearing
for the appellant submitted that the offence of attempt480 to commit culpable homicide
not amounting to murder was not established on the evidence. He submitted that
accused no. 3, 500 the cleaner, was standing on the footboard of the bus.
He pointed out that the allegation against him was that while PW1
was attempting to board the bus, he not only did not help her but virtually
pushed her out of the bus. He submitted that all that is alleged against
the appellant is that he rang the bell which was a signal to the driver to
start the vehicle and accused No.1 started the bus as a result of which
PW1 fell down and sustained serious injuries. He submitted that as accused no. 3
has been acquitted by the600 High Court, the conviction of the appellant cannot be sustained.
He submitted that the incident occurred on 18th August 2005 which is more than
17 and half years old. The appellant has undergone incarceration for a
period of 36 days. He was throughout on bail.
The learned counsel appearing for the respondent State pointed out
that it was the duty of the appellant as a conductor to ensure that all
the passengers safely board the bus at the bus stop and the further duty
of the appellant was to close the door of the bus and thereafter,700 ring the bell for giving a signal
to the driver to start the bus. He submitted that the appellant had720 knowledge that at the bus stop,
many students were waiting to board the bus to reach their schools. Therefore,
knowledge on his part can be inferred that by his act of ringing
the bell without taking precautions, death can be caused of a passenger who is
trying to board the bus. He pointed out the injuries sustained by PW1. He
submitted that the injuries were very serious, though fortunately, PW1
survived. He would, therefore, submit that the offence under Section800 308 was established.
It is not the prosecution's case that the
appellant had any intention to cause the death of PW1 or intention to
cause such bodily injury to her as is likely to cause her death. The
question is whether the appellant had knowledge that he, by virtue of the act
of ringing the bell, was likely to cause death. It is not possible to
say that the appellant while ringing the bell, had knowledge that his
act is likely to cause the death of PW1. The bus was overcrowded. The
cleaner was standing near the footboard. Therefore,900 in the absence of intention and
knowledge as contemplated by Section 299 of IPC, the offence of attempt
to commit culpable homicide not amounting to murder was not made out. This
is not a case where if the appellant's act would have resulted into the
death of PW1, he would be guilty of culpable homicide, not amounting to
murder.960
