Common Judgment :

1. Crl.Appeal No.1556/2007 has been filed by the State of Kerala challenging the judgment of the Assistant Sessions Court, Tirur, in S.C.No.78/2004 dated 28.02.2018 whereby the Assistant Sessions Court acquitted the sole accused of the offence punishable under Section 304(ii) of the Indian Penal Code (`IPC’ for short hereafter) while convicting and sentencing him for the offences punishable under Sections 279, 337, 338 and 304(A) of IPC.

2. During the pendency of this appeal before this Court, at the instance of the prosecution, the accused, who had been convicted and sentenced for the offences punishable under Sections 279, 337, 338 and 304(A) of IPC, had filed an appeal before the Sessions Court, Manjeri, challenging the said conviction and sentence vide Crl.Appeal No.326/2005. However, regardless of the pendency of Crl.Appeal No.1556/2007 before this Court, the learned Sessions Judge dismissed the appeal at the instance of the accused, as per judgment dated 28.02.2018 in Crl.Appeal No.326/2005,

3. Crl.R.P.No.674/2018 has been filed challenging the said verdict.

4. Heard the learned Special Public Prosecutor appearing for the appellant/State of Kerala in Crl.Appeal No.1556/2007 and the learned counsel appearing for the respondent/accused therein. Also heard the learned counsel for the revision petitioner.

5. I shall refer the parties in this appeal as well as the revision petition as `prosecution’ and `accused’ for easy reference hereafter.

6. The prosecution case is that the accused, who was the driver of a stage carriage bus bearing Reg.No.KL 11 E 3987, driven the same through Guruvayur- Tellicherry road along with travellers therein, who were the pilgrims of Guruvayur temple in a manner with the knowledge that driving the vehicle in such a manner, would be fatal to the travellers sitting in the bus and pedestrians and while driving so he had hit the stage carriage on the back of an Ambassador car bearing Reg.No.KLL 415, and as the outcome of the same, the bus got capsized. Out of the occurrence, 44 persons died though some among the travellers survived, with serious injuries. This is the base on which the prosecution alleges commission of the offences punishable under Sections 279, 337, 338 and 304 Part II of IPC, by the accused.

7. Upon committal of the case to the Sessions Court, the Sessions Court made over the case to the Assistant Sessions Court for trial and disposal. Thereafter the learned Assistant Sessions Judge proceeded with trial, PW1 to PW75 were examined and Exts.P1 to P129 were marked on the side of the prosecution. Thereafter, an opportunity was given to the accused to adduce defence evidence after questioning him under Section 313(1)(b) of the Code of Criminal Procedure (`Cr.P.C’ for short hereafter), but no defence evidence was adduced. Finally, the Assistant Sessions Court found that the accused committed offences punishable under Sections 279, 337, 338 as well as 304A of IPC, while acquitting the accused for the offence punishable under Section 304(ii) of IPC.

8. The prosecution thereafter filed the present Criminal Appeal No. 1556 of 2007 contending that the Assistant Sessions Court went wrong in finding that the accused did not commit the offence punishable under Section 304(ii) of IPC, when the evidence given by the travellers in the bus clearly established that the accused had driven the bus with the knowledge that his act would likely to cause an accident and the consequential death of the travellers therein. Therefore, the contention raised by the learned Public Prosecutor is that, in the instant case, instead of Section 304A, 304(ii) of IPC would attract. The learned Public Prosecutor read out the relevant portions of the depositions of the witnesses and relied on the crucial materials therein to substantiate the contentions advanced in this regard.

9. Dispelling these contentions, it is argued by the learned counsel for the accused that, in the instant case, even though 44 persons died, it is not safe to reach a conclusion that the accused committed the offence punishable under Section 304(ii) of IPC and according to him, in order to bring home an offence under Section 304(ii) of IPC, the prosecution must establish the requisite knowledge on the part of the accused. In this connection, the learned counsel for the accused placed a decision of this Court reported in [2025 KHC 595 : 2025 KHC OnLine 595 : 2025 KER 39765 : 2025 KLT OnLine 2107], Byju v. State of Kerala with reference to paragraph 13, which reads as under:

                  “13. Thus, in a prosecution alleging offence punishable under Section 304 of IPC, defined under Section 299 of IPC, the prosecution has the duty to prove that the accused has done an act/acts with intention to cause death, or with the intention to cause such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death. In addition to that, the prosecution has the duty to prove beyond reasonable doubt that the said act/acts was/were done by the accused. Mere reference in a document or somewhere that it was the accused, who had driven the vehicle, which resulted in the accident involving death of human beings, would not suffice this requirement. To put it more vividly, in cases where the offence under Section 304 of IPC is alleged, on the ground that the driver of the vehicle carelessly driven the vehicle and caused death of human beings, there must be convincing evidence to show that the accused driven the vehicle at the time of occurrence, in a manner so as to endanger human life and which resulted in the death of human being, with exact identity of the accused.”

10. It is pointed out by the learned counsel for the accused further that mere high speed while driving the vehicle would not by itself constitute the ingredients to find commission of the offences punishable under Sections 279, 337, 338 and 304A of IPC and in the instant case neither 304(ii) of IPC nor the offences under Sections 279, 337, 338 and 304A of IPC would not attract, as the evidence of the witnesses is confined only to the allegation that the accused was driving the stage carriage at the relevant time at high speed or over speed.

11. In this connection, the learned counsel for the accused placed a decision of the Apex Court in [1998 KHC 1353 : 1998 (8) SCC 493 : 1998 SCC (Cri) 1508], State of Karnataka v. Satish, wherein paragraphs 4 and 5 are relevant, which are extracted hereunder:

                  “4. Merely because the truck was being driven at a “high speed” does not bespeak of either “negligence” or “rashness” by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by “high speed”. “High speed” is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by “high speed” in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of “rashness” or “negligence” could be drawn by invoking the maxim “res ipsa loquitur”. There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.

                  5. There being no evidence on the record to establish “negligence” or “rashness” in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged.”

12. Apart from that, the learned counsel for the accused placed a decision of this Court reported in [2023 (3) KHC 221 : 2023 KHC OnLine 324 : 2023 KER 23230 : 2023 (3) KLT 93 : 2023 (2) KLJ 508 : ILR 2023 (2) Ker. 1015 : 2023 LiveLaw (Ker) 188], State of Kerala v. Sreeram Venkittaraman.

13. While assimilating the rival arguments, the points arise for consideration are:

                  (i) Whether the Assistant Sessions Judge went wrong in finding that the accused did not commit offence under Section 304(ii) of IPC?

                  (ii) Whether the Assistant Sessions Judge is right in finding that the accused committed offences punishable under Sections 337, 338 and 304A of IPC?

                  (iii) Do the verdicts impugned would require interference?

                  (iv) The order to be passed?

Points (i) to (iv)

14. As pointed out by the learned counsel on both sides, in this case, the prosecution asserts commission of the offences punishable under Section 304(ii) as well as under Sections 279, 337 and 338 of IPC, by the accused. The evidence of PW1, PW5 to PW17, who were the passengers of the stage carriage as well as PW2, a person residing near the place of occurrence were given much emphasis to substantiate the prosecution case. Apart from the evidence of the occurrence witnesses, the prosecution has given heavy reliance on the evidence of PW70, the Regional Transport Officer, who prepared Ext.P113 report regarding the condition of the vehicle after the accident.

15. On scrutiny of the judgment under challenge along with the arguments tendered, it is relevant to note that PW4 to PW6, PW14 to PW17 along with the evidence of PW70 were relied upon by the Assistant Sessions Judge to enter into the finding that the accused did not commit the offence punishable under Section 304(ii) of IPC, instead he had committed the offences punishable under Sections 279, 337, 338 as well as 304A of IPC.

16. PW1 examined in this case is one Muhammed Shafi. According to him, he travelled in the bus on the fatal day and the bus started from Guruvayur to Kozhikode. He entered into the bus from Edarikode and the bus was driven in speed and when the bus was moved and left Kozhichena a sound beneath the bus was heard and the bus moved in zig-zag manner. But the bus was not stopped and continued upto 10-20 metres and hit against a car and the bus capsized. The bus was full, and there were also passengers standing. According to him, the bus was subjected to fire and somebody had broken the glass behind the bus and he escaped through the same. The time of occurrence was at 2 p.m. He had been taken to MKH hospital for treatment and he had escaped during the rescue operation. Later PW1 turned hostile to the prosecution. He was subsequently cross examined by the Public Prosecutor and marked his statement regarding the occurrence as Ext.P1. During his cross examination, he stated that he did not know the driver of the bus and he did not see him. Thus when he was questioned by referring his previous statement in Ext.P1 suggesting that the reason for the accident was the rash and negligent driving of the accused, he had admitted the same and he also stated that he could identify the accused and he also admitted that he had identified the accused as stated in the previous statement.

17. One Kunhi Muhammed examined in this case as PW2, who witnessed the occurrence while sitting at his home at the time of occurrence also initially turned hostile to the prosecution, later when he was cross-examined by the Public Prosecutor, he also supported the prosecution case. PW4 examined in this case is Ramlabi, the owner of the car against which the bus had hit. She also supported the occurrence as regards to the hit of the bus against the car and according to her, the bus was in over speed and she had seen fire beneath the bus after the occurrence. In fact, this witness was not cross examined at all. Though she supported the prosecution case and heard the voice, her version remains unchallenged.

18. Coming to the evidence of PW5, who also was a traveller in the stage carriage on the date of occurrence, he had testified that he was a victim of the mishap and he sustained fracture to his left hand. According to him, he had taken ticket to Madappally College stop from Guruvayur and was seated on the right side on the 5th row from the front. There were full passengers in the bus and the bus was driven in over speed and in a careless manner. According to him, even though the passengers had requested the accused to reduce the speed of the bus and to be careful in driving, he did not heed to the same. According to him, when the vehicle reached Kozhichena a sound was heard from the bus and then the bus moved in a zig-zag manner and then the bus capsized. According to PW5, the over speed and negligence on the part of the bus driver had resulted in the occurrence and he had escaped through the windows of the bus. During cross examination, it was brought out that the bus was a limited stop bus and not a fast passenger bus, and there were not many vehicles on the road at the time of occurrence. During cross examination, he had revealed further that, upon noticing a lorry involved in an accident in Valanchery, he told the accused to drive the vehicle carefully to avoid an accident of the same stature. The accused, in response, informed him that the bus was a limited stop service bus and would reach at each stop on time.

19. Rajesh.P examined in this case is PW6. According to him, he was engaged in teaching driving, in a driving school. He had gone to Guruvayur along with one Vysakh (PW13) for darsan and had returned in the afternoon. He deposed further that he along with Vaisakh had entered into the bus from the private bus stand, Guruvayur and had sat on the box seat of the bus on the left side of the cabin of the driver. There were passengers standing also. The bus had been driven in a rash and negligent manner and accordingly he had demanded the driver to reduce the speed and to drive the same carefully. When the bus reached Kozhichena, a sound was heard from beneath the bus and thereafter the bus had moved in a zig- zag manner and eventually hit on the rear side of a car and capsized. According to him, even after the zig-zag movement of the bus, the bus driver had not taken any steps to reduce the speed. After the accident, the driver had fallen on his body and by breaking one of the windows, the driver was rescued. PW6 testified that through the same broken window, himself and Vysakh had also escaped. Thus the evidence during examination of PW6, who had given crucial evidence by sitting nearby the driver’s seat near the cabin is very crucial in this case. Although he was cross-examined, his evidence failed to be shaken in any manner.

20. Coming to the version of PW11, Savithri Antharjanam, PW13 Vaisakh, who accompanied PW6, PW14 Sri Unnikrishnan, PW17 Lakshmikutty M.C, all of them had given evidence supporting the prosecution case as spoken by PW1, PW5 and PW6, without any anomaly, attributing negligence and carelessness on the part of the accused and reluctance on the part of the accused, to drive the bus carefully even after the passengers had given warning of danger.

21. Now the evidence of PW70, who was the Regional Transport Officer (`RTO) during 2001 is very relevant. According to him, he had inspected the vehicle bearing Reg.No. KL 11 E 3987 stage carriage on 12.03.2001 at the place of occurrence, as directed by the Regional Transport Commissioner and Ext.P113 is the report he had prepared. Similarly, he had examined the Ambassador car bearing Reg.No.KLL 415 and prepared Ext.P114 report and he had stated the reason for the occurrence as “due to development of mechanical defect which is a by-product of the rash, over speed, negligent driving of the vehicle the accident occurred”. PW70 was cross examined with a view to elicit the defense case that the accident was the outcome of breakage of propeller shaft due to mechanical defect. The learned counsel for the accused specifically argued on this point to substantiate that, if the occurrence was the mechanical defect of the bus, either offence under Section 304(ii) or under Sections 279, 337 and 338 of IPC could not be found. In fact, the reason for the accident is categorically deposed by PW70 as stated in Ext.P113 report as extracted above, even during cross-examination, nothing elicited to disbelieve the said evidence. It is true that, on the defense side, another RTO, who had retired from service, was examined to address the technical aspect. According to him, when there is a breakage on the propeller shaft, the connection between the tyre and the road could be lost and if proper action would not be taken, steering control might not be maintained. The case of the accused is that the accused did not contribute anything to the accident and the accident was the result of breakage of propeller shaft as the outcome of a mechanical defect During cross examination, it is admitted by DW1, who had retired in the year 1988 and the RTO in service who had inspected the vehicle could speak of the details and he did not inspect the vehicle and he had deposed something on the mechanical side. Lastly his evidence is that, no damage would be caused to the braking system because of the breakage of propeller shaft and no damage would be caused to the steering system also because of breakage of propeller shaft.        He also stated that on breakage of propeller shaft, the vehicle would not be moved in a zig zag manner. Finally, his evidence is that when a vehicle would be driven in over speed, there would be likelihood of damage being caused to the components.

22. It is true that, as held by the Apex Court in State of Karnataka's case (supra), merely because a vehicle was driven at a high speed, the same by itself did not establish negligence when none of the witnesses examined by the prosecution could even approximately indicate what they meant by ‘high speed’. No doubt, `high speed’ is a relative term and it is the duty of the prosecution to explain what is meant by `high speed’ in the facts and circumstances of each case. Similarly, it is well settled that in a criminal prosecution, the burden of proving the offence/offences committed by the accused always rests upon the prosecution and there is a presumption of innocence in favour of the accused unless he would be found guilty. Thus in a case where the witnesses had given evidence stating that the vehicle had been driven in over speed or high speed, without indicating any element of negligence, the same by itself cannot be held sufficient to find rashness on the part of the accused. However, when witnesses unanimously depose about over speed, rashness, and negligent driving, and their versions remain unshaken during cross-examination, such evidence would clearly suggest that rashness and negligence were the causes of the accident.

23. In the instant case, the evidence discussed would show rashness and negligence on the part of the accused and the same would further show that despite the warning and request repeatedly made by the passengers to reduce the speed of the bus, which was driven in over speed and in a rash and negligent manner, the accused failed to heed their apprehensions and his explanation was that, since the bus was a limited stop service, the same had to reach each station on time. This vital evidence given by the witnesses, as already quoted, would show that the driver was either not ready to drive the vehicle carefully and without the element of rashness and negligence, and his intention was to reach the destination on time even by driving the bus in a rash and negligent manner.

24. As already observed, in order to bring home an offence under Section 304 of IPC, the intention to cause death or the intention to cause such bodily injury as is likely to cause death or with the knowledge that is likely to cause death are the ingredients.

25. In the decision reported in [(2024) 20 SCC 500], Anbazhagan v. State represented by the Inspector of Police, the Apex Court held in para.27 that, the framers of IPC designedly used the two words "intention" and "knowledge", and it must be taken that the framers intended to draw a distinction between these two expressions. The knowledge of the consequences which may result in the doing of an act is not the same thing as the intention that such consequences should ensue. Except in cases where mens rea is not required in order to prove that a person had certain knowledge, he "must have been aware that certain specified harmful consequences would or could follow."

26. When a driver drives a stage carriage, it could not ordinarily be held that he had a deliberate intention to cause death of the travellers or the passengers nearby. Thus the said overt acts do not attract an offence under Section 299 of IPC punishable under Section 304 Part I of IPC. But when a driver drives a vehicle in a rash and negligent manner, the same alone would result in causing death of the travellers or passengers and the offence punishable under Section 304A of IPC alone would get attracted. But the knowledge of the driver that certain specified harmful consequence and fatality would be sufficient to attract the ingredients for the offence punishable under Section 304 Part II of IPC. Thus these are the vital aspects which would determine whether the offence falls either under Section 304A of IPC or under Section 304(ii) of IPC. When a person commits culpable homicide not amounting to murder, the same is an offence under Section 299 of IPC punishable under Section 304 of IPC.       Section 304 of IPC mainly has two parts, viz. Part I and part II, depending upon the ingredients.

27. In the decision reported in [(2008) 1 SCC 791], Naresh Giri v. Sate of M.P, the Apex Court considered a case alleging commission of offences punishable under Section 302 and alternatively under Sections 304, 325 and 323 of IPC. The facts of the case was that, on 29-8-2004 bus bearing No. MPO 10588 was going from Ahrauli towards Kailaras. While it was near a railway crossing, an accident took place. A train hit the bus at the railway crossing. In the accident the bus which was being driven by the appellant was badly damaged and as a result of the accident several passengers got injured and two persons, namely, Bhagoli @ Bhagwati and Ankush died. First information report was lodged by Brijmohan Sharma, Constable. After completion of investigation charge-sheet was filed. In the said case, while alleging the charges to Section 304A of IPC as well as under Sections 299, 300 of IPC, the Apex Court considered the difference between offences punishable under Sections 304 & 304A of IPC in paragraphs 7, 8 and 9 as under:

                  “7. Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at of-fences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A.

                  8. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When intent or knowledge is the direct motivating force of the act, Section 304- A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence; a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practise such rashness or negligence which may cause the death of other. The death so caused is not the determining factor.

                  9. What constitutes negligence has been analysed in Halsbury’s Laws of England (4th Edn.), Vol.34, Para 1 (p.3), as follows:

                  “1. General principles of the law of negligence:-- Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger; the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent, although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with demonstrable relation of cause and effect between the two.”

28. In another decision in [(2012) 8 SCC 450], State through Ps Lodhi Colony, New Delhi v. Sanjeev Nanda, the Apex Court considered a case to decide what is the offence to be committed in the facts dealt in the said case, viz.304(ii) or Section 304A of IPC. The facts of the case are stated in paragraphs 3, 4, 5 and 6 as under:

                  “3. Facts shorn of unnecessary details as unfolded by the prosecution are mentioned herein below : on the intervening night of 9-1-1999/10-1-1999, an unfortunate motor accident took place involving BMW Car No. M 312 LYP. At the relevant point of time, it is no more in dispute that the offending vehicle BMW was being driven by the respondent. As per the prosecution story, the said vehicle was coming from Nizamuddin side and was proceeding towards Lodhi Road. Just at the corner from where Lodhi Road starts, seven persons were standing on the road at about 4.00 a.m. In the said car, Manik Kapur and Sidharth Gupta (since discharged) were also sitting.

                  4. As per the prosecution story, Manoj Malik (PW 2) had started from his house to leave friends Nasir, Mehendi Hasan and his friend Gulab at Nizamuddin Railway Station on foot. When they reached the petrol pump of Lodhi Road, three police officials of the checking squad, Constables Rajan, Ram Raj and Peru Lal, stopped them and started checking. In the meantime, a BMW car driven rashly and negligently came from the Nizamuddin side at a high speed and dashed violently against them. The impact was so great and severe, that they flew in the air and fell on the bonnet and windscreen of the car. Some of them rolled down and came beneath the car. On account of this, the accused lost control of the vehicle which swerved to the right side of the road and ultimately hit the central verge. The persons who had come under the car were dragged up to that point. Manoj (PW 2) who had fallen on the bonnet fell down at some distance but did not come under the wheels.

                  5. After hitting the central verge, the car finally stopped at some distance, the respondent came out from the car and inspected the gruesome site. It is said that co-passenger Manik Kapur asked the accused to rush from the scene of occurrence. Injured persons were shouting and crying for help. But ignoring them, he drove away the car at high speed towards Dayal Singh College, even though there were still some persons beneath the car. In the said accident, ultimately, six of them were killed and Manoj (PW 2) was injured. The accused then took the car to his friend Sidharth Gupta's house at 50, Golf Links, New Delhi. The prosecution story further goes to show that there another accused, Rajeev Gupta, father of Sidharth Gupta with the help of two servants, accused Shyam and Bhola washed the car and destroyed the material evidence.”

29. In the said case, thereafter in paragrahs 111 to 114, the Apex Court held as under:

                  “111. In Jagriti Devi v. State of H.P. a Bench of this Court held that it is trite law that Section 304 Part Il comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death.

                  112.    In one of the earlier decisions of this Court in State of A.P. v. Rayavarapu Punnayya,this Court succinctly examined the distinction between Section 299 and Section 300 IPC and in para 12 of the judgment held as follows: (SCC p. 386)

                  "12. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide but not vice versa. Speaking generally, 'culpable homicide sans 'special characteristics of murder', is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree. This is the gravest form of culpable homicide, which is defined in Section 300 as 'murder'.

                  The second may be termed as 'culpable homicide of the second degree. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304."

                  Referring to para 14 of that judgment, the Court opined that the difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. The word "likely" in clause (b) of Section 299 conveys the sense of "probable" as distinguished from a mere possibility. The words "bodily injury sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury having regard to the ordinary course of nature.

                  113.    Ultimately, the Court concluded as follows: (Rayavara-pu Punnayya case , SCC pp. 388-89, para 21)

                  "21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder’ or 'culpable homicide not amounting to murder', on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to 'culpable homicide as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder, punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes, within any of the exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the first part of Section 304 of the Penal Code."

                  114. The principle mentioned by this Court in Alister Anthony Pareira indicates that the person must be presumed to have had the knowledge that, his act of driving the vehicle without a licence in a high speed after consuming liquor beyond the permissible limit, is likely or sufficient in the ordinary course of nature to cause death of the pedestrians on the road. In our view, Alister Anthony Pareira judgment calls for no reconsideration. Assuming that Shri Ram Jethmalani is right in contending that while he was driving the vehicle in a drunken state, he had no intention or knowledge that his action was likely to cause death of six human beings, in our view, at least, immediately after having hit so many human beings and the bodies scattered around, he had the know-edge that his action was likely to cause death of so many human beings, lying on the road unattended. To say, still he had no knowledge about his action is too childish which no reasonable man can accept as worthy of consideration. So far as this case is concerned, it has been brought out in evidence that the accused was in an inebriated state, after consuming excessive alcohol, he was driving the vehicle without licence, in a rash and negligent manner in a high speed which resulted in the death of six persons. The accused had sufficient knowledge that his action was likely to cause death and such an action would, in the facts and circumstances of this case, fall under Section 304 Part II IPC and the trial court has rightly held so and the High Court has committed an error in converting the offence to Section 304-A IPC.”

30. Thus the law emerges is that the framers of IPC designedly used the two words "intention" and "knowledge", and it must be taken that the framers intended to draw a distinction between these two expressions. The knowledge of the consequences which may result in the doing of an act is not the same thing as the intention that such consequences should ensue. Except in cases where mens rea is not required in order to prove that a person had certain knowledge, he must have been aware that certain specified harmful consequences would or could follow. Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision operates outside the range of Sections 299 and 300 IPC. Section 304- A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A. When intent or knowledge is the direct motivating force of the act, Section 304- A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence; a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practise such rashness or negligence which may cause the death of other. The death so caused is not the determining factor. Whenever a court is confronted with the question whether the offence is 'murder’ or 'culpable homicide not amounting to murder', on the facts of a case, it will be convenient for it to approach the problem in three stages, viz;

                  (i) whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering;

                  (ii) whether that act of the accused amounts to 'culpable homicide as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine; and

                  (iii) whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder, punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes, within any of the exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the first part of Section 304 of the Penal Code.

31. Thus while driving a vehicle if the driver had knowledge that his action would likely to cause death, such an action would, in the facts and circumstances of the case, fall under Section 304(ii) of IPC and not under Section 304A of IPC. Here PW5, who travelled in the stage carriage at the time of occurrence, had given categoric evidence that he was seated on the right side of the 5th row from the front and the driver had driven the bus in over speed and in a careless manner. Accordingly, the passengers had requested the accused to reduce the speed of the bus and to be careful in driving, then the accused didn’t heed the request. He stated further that due to over speed and negligence on the part of the bus driver, when the vehicle reached Kozhichena, a sound was heard from the bus and after moving for a while, the bus was capsized. PW5 deposed further that while travelling in the bus, just before the occurrence, upon noticing a lorry involved in an accident in Valancherry, he specifically told the accused to drive the vehicle carefully to avoid an accident of the same nature. In reply to this, the accused answered that the bus was a limited stop service bus and the same would reach at each stop on time. PW6, who in fact is a teacher in driving, running a driving school, sat on the box seat of the bus immediately on the left side of the cabin of the driver, stated that the bus had been driven in a rash and negligent manner and accordingly he had demanded the driver to reduce the speed and to drive the vehicle carefully. But it was not accepted by the accused. He also deposed that, when the bus reached Kozhichena, a sound was heard from beneath the bus and thereafter also he had failed to stop the bus and thereafter the bus moved in a zig-zag manner. But the driver did not take any steps to reduce the speed. PW1 also deposed that the bus moved 10- 20 metres after hearing a sound from beneath the bus as the driver failed to brake the bus even after the sound. It has come out in evidence through Ext.P113 and the evidence of PW70 that, due to development of mechanical defect, which is a by-product of the result of the rash, over speed and negligent driving of the accused, the accident had occurred.

32. Apart from that DW1, also deposed that no damage would be caused to the braking system because of the breakage of the propeller shaft and no damage would be caused to the steering system also because of the propeller shaft and he also deposed that when the vehicle would be driven in over speed, there would be a likelihood of damage being caused to the components. Thus in the instant case, as deposed by almost all witnesses to the occurrence, the occurrence was the overt act of the accused, who had driven the vehicle at the relevant time so rashly in over speed. Even though mere rash driving would attract the offence under Section 304A of IPC, the rash driving of the vehicle in over speed would indicate that the driver had knowledge regarding the consequences which would result from doing the said act, viz. fatality to the passengers, particularly, when he was warned and requested by the passengers to reduce the speed to avoid fatality to the travellers. Evaluating the facts and evidence as afore, this case could not be considered as one fully within the purview of mere rash and negligent driving to attract the offence under Section 304A of IPC. To the contrary, in this case, the accused had sufficient knowledge regarding the consequences of the acts done by him, i.e nothing but fatality to human beings, including the travellers or pedestrains. Ultimately the overt acts of the accused resulted in death of 44 human beings. If so, the finding of the learned Assistant Sessions Judge that the offence which would attract in the facts of this case is only the offence under Section 304A of IPC, would not sustain, since the available evidence established commission of offence punishable under Section 304(ii) of IPC by the appellant/accused. In view of the matter, the verdict challenged in Crl.Appeal No.1556/2007 is set aside altering the offence under Section 304A of IPC to 304(ii) of IPC while confirming the conviction recorded by the learned Assistant Sessions Judge for the other offences. As a sequel thereof, the verdicts impugned in the Revision Petition also are liable to be set aside in the same way.

33. In the result:

                  (i) Crl.Appeal  No.1556 of 2007 stands allowed.

                  (ii) The judgments assailed   in Crl.R.P.No.674/2018 are interfered and set aside, and it is held that the finding therein that the accused committed the offence under Section 304A of IPC, is unsustainable.

                  (iii) It is held that the accused/appellant committed the offences punishable under Section 304(ii) of IPC as well as under Sections 279, 337 and 338 of IPC and he is convicted for the said offences.

                  The order suspending his sentence and granting bail to the accused stands vacated.

1. In this case, this Court found that the accused committed offence punishable under Section 304(ii) of IPC, while confirming the conviction for the offences under Sections 279, 337 and 338 of IPC.

2. The accused, who is personally present before this Court today was heard on the question of sentence to be imposed for the offence under Section 304(ii) of IPC. He had submitted that he had suffered mental distress for the past 2 to 3 years, because of this occurrence. He further submitted that he has a daughter aged 25 years and that he is the sole breadwinner of his family. Therefore, he prayed that the sentence may kindly be reduced to the least minimum possible.

3. The learned counsel for the accused submitted that the accused is now aged 64 years, though the occurrence had taken place 25 years ago and he is the only person to look after the affairs of his family. He also would submit that, having considered the above facts, maximum leniency may be shown in the matter of sentence.

4. In this case, the death of 44 persons had occurred. Considering the seriousness of the offence, the consequences thereof and also in consideration of the submissions made by the accused and his counsel, this Court is of the view that the following sentence would be reasonable.

5. Therefore, the accused is sentenced to undergo simple imprisonment for a period of five years and to pay a fine of Rs.2 Lakh for the offence under Section 304(ii) of the IPC and in default of payment of the fine, the accused shall undergo simple default imprisonment for a period of one year.

6. The sentences imposed by the Assistant Sessions Judge for the offences under Sections 279, 337 and 338 of IPC are confirmed.

                  The period during which the accused had been in custody in connection with this crime shall be set off.

                  The substantive sentence shall run concurrently, and the default sentence shall run separately.

The accused is sent to Central Prison, Viyyur, along with execution warrant.

                  The Jail Superintendent is directed to give medical aid, if necessary.