1. The sole accused in S.C.No.648/2013 on the files of the First Additional Sessions Court, Ernakulam, has filed this appeal challenging the verdict in the said case dated 21.06.2016.

2. Heard the learned counsel for the appellant/accused and the learned Public Prosecutor appearing for the prosecution in detail. Perused the relevant records and the impugned verdict.

3. Here the prosecution filed final report alleging commission of offences punishable under Sections 279, 337 and 304 of Indian Penal Code ( ‘IPC’ for short) as well as under Sections 185A, 146 r/w 196 of the Motor Vehicles Act (`MV Act' for short), by the appellant/accused.

4. The case of the prosecution is that at about 5.50 p.m on 14.01.2013 the accused rashly and negligently driven his motor cycle bearing Registration No.KL07 BN 6698 from east to west through the Champakkara Canal road and hit against one George, knowing fully well that driving in such a manner would be sufficient to cause fatality to human beings. Pursuant to the accident, Sri George, who sustained very serious injuries, breathed his last while undergoing treatment. The learned Sessions Judge on completing pre-trial formalities framed charge for the said offences and proceeded with trial. During trial, PW1 to PW17 were examined and Exts.P1 to P20 were marked on the side of the prosecution. On the side of defense, DW1 was examined and Exts.D1 and D2 were marked.

5. The learned Judge analyzed the evidence and found that the appellant/accused had committed the offences punishable under Sections 279 and 337 of IPC as well as under Section 146 r/w 196 of the MV Act. It was also found by the learned Sessions Judge that the prosecution established the ingredients for the offence punishable under Section 304A of IPC. But the learned Special Judge taken a view that since there was no charge framed for the offence under Section 304A and 304A is not a minor offence of Section 304, the appellant/accused could not be convicted. Accordingly the appellant was convicted for the other offences and sentenced him as under:

                  “(1) The accused is sentenced to undergo simple imprisonment for three months and to pay compensation of Rs.30,000/- u/s 357(3) of Cr.PC for the offence punishable u/s 279 of IPC.

                  (2) The accused is sentenced to undergo simple imprisonment for three months and to pay compensation of Rs.30,000/- U/s357(3) of Cr.PC for the offence punishable u/s 337 of IPC.

                  (3) Out of the compensation amount Rs.50,000/- shall be paid to the legal heirs of the deceased George and Rs.5,000/- each shall be paid to the injured, PW12 and CW5.In default of payment of compensation the accused shall suffer simple imprisonment for a period of three months.

                  (4) The accused is sentenced to pay fine of Rs.1,000/- for the offence punishable u/s 146 r/w 196 of the Motor Vehicle Act, 1988. In default of payment of fine the accused shall suffer simple imprisonment for 15 days.

                  (5) Substantive sentence shall be run concurrently.”

6. The learned counsel appearing for the appellant/accused argued at length to upset the conviction and sentence imposed against the appellant for the offences punishable under Sections 279 and 337 of IPC as well as under Section 146 r/w 196 of the MV Act on the submission that the entire case is foisted and the appellant got arrayed as the accused in this crime as the driver of the motor cycle on mistaken identity, in a case, where the motor cycle at the time of occurrence was ridden by DW1, who had given evidence in this regard. He had pointed out the inconsistencies interwoven in the prosecution evidence and according to the learned counsel, the appreciation of the evidence given by the prosecution witnesses examined as PW1, PW2, PW3 and PW12 by the learned Sessions Judge was patently wrong and the learned Sessions Judge would not have given much weightage to their evidence, discarding the evidence of DW1. It is also pointed out that the learned Sessions Judge failed to take note of the fact that PW1, PW2, PW3 and PW12 are highly interested witnesses. It is also submitted that the identification of the accused at the instance of PW1 and PW12 at the hospital is not believable since PW7, the Investigating Officer, had no such case. PW12 was not even interrogated by the police in connection with this occurrence, since he was of tender age at the time of occurrence (9 years), though he was examined as a child witness before the court. According to the learned counsel for the appellant/accused, the Sessions Judge ought to have found that PW1 to PW3 and PW12 did not witness the occurrence as they could not speak before the court as to which portion of the motorcycle hit against George. According to him, the case of the accused spoken by DW1, would show what actually occurred and therefore the prosecution case is in the midst of doubts. Another contention raised by the learned counsel for the appellant/accused is that Ext.P14 FIR was registered suo motu without recording statement of any witnesses and the same would show that Ext.P14 is prejudicial. It is pointed out that the Motor Vehicle Inspector had inspected the motor cycle on 18.03.2013 and for which documents in the motorcycle were given to him from the police station. But the prosecution case is that the documents in the motorcycle were seized by the police only on 05.04.2013 as per seizure mahzar. This aspect also shadows doubt in the prosecution case. This also would show that after getting the documents including the driving licence of the accused found in the motorcycle, he got arrayed as the accused in this crime though he did not ride the bike at the time of occurrence. Therefore, the verdict would require interference. Finally, as an alternative the learned counsel pressed for leniency in the matter of sentence to reduce the same to payment of fine alone.

7. Zealously opposing the contentions raised by the learned counsel for the appellant/accused, the learned Public Prosecutor has given much emphasis on the evidence of PW1 to PW3 and PW12 to hold that though their evidence would not show a deliberate intention or a knowledge to find commission of offence punishable under Section 304 of IPC, rashness and negligence on the part of the appellant/accused, as the rider of the motorcycle, were established by the prosecution. Therefore, the finding of the learned Sessions Judge holding the view that the appellant/accused committed offences punishable under Sections 279 and 337 of IPC as well as under Section 146 r/w 196 of the MV Act is only to be justified.

8. Having considered the rival contentions, the points arise for consideration are :

                  (i) Whether the Sessions Court is right in holding that the accused committed the offence punishable under Section 279 of IPC?

                  (ii) Whether the Sessions Court went wrong in holding that the accused committed the offence punishable under Section 337 of IPC?

                  (iii) Whether the Sessions Court is right in holding that the accused committed the offence punishable under Section 146 r/w 196 of IPC?

                  (iv) What is the procedure to be followed by the Sessions Judge when it found that offence under Section 304A of IPC is established by the prosecution without a charge for the same when the accused was charged for the offence under Section 304 of IPC?

                  (v) Is it necessary to interfere with the impugned judgment in any manner?

                  (vi) The order to be passed?

Point Nos.(i to vi)

9. Insofar as the question as to whether 304A of IPC is a lesser offence under Section 304 of IPC, as held by the Apex Court in [AIR 1964 SC 1263], Afrahim Sheikh and others v. State of W.B, in the decision reported in [1991 KHC 181], Benny v. State of Kerala. the learned Single Judge of this Court considered the issue with reference to Afrahim Sheikh and others v. State of W.B's case(supra) and observed in paragraph Nos.15 and 16 as under:

                  “15. . An attempt was then made to contend that what is involved is only an offence punishable under S.304 A of the Penal Code as it could only be said to be a rash or negligent act. I am not able to agree. As held in Afrahim Sheikh's case (AIR 1964 SC 1263), causing death by doing an act accompanied by the intention in two ways described in 5.299 of the Penal Code or with the knowledge that the act is likely to cause death, which is also described there, could be distinguished from cases of deaths resulting from accident or rashness. Distinction between killing by rash or negligent act and culpable homicide not amounting to murder will have to be appreciated. S.304-A, by its definition, excludes culpable homicide, which involves mens rea in the form of intention, knowledge or reasonable belief. S.304 A has no application where intention to cause death or knowledge that the act done will likely or in all probability cause death is there. S.304-A applies only to cases where death is caused by a rash or negligent act without any intention or knowledge. A positive intentional act with the knowledge of the consequences cannot attract S.304-A. In an offence coming under S.304-A. question is whether the rash or negligent act was the causa causans, ie, the proximate and efficient cause of death, whereas in culpable homicide, question is whether the act was the causa sine qua non, ie, the cause without which the thing cannot occur. Negligence is breach of duty imposed by law to be careful. Rashness is a specie of which negligence is the genus. A rash act is a negligent act done precipitately. It is hazarding a risk. Negligence is acting without the awareness that the harmful or mischievous conseqüences will follow. In rashness, even though the consciousness may be there, what is involved is only running a risk with the hope that such consequences will not follow. I do not think that S.304-A is in any way attracted.

                  16. Further, in this case, conviction under S.304-A without a charge is not possible also. 5.22 of the Code of Criminal Procedure cannot be attracted because S.304-A is not a minor offence constituting only some of the several particulars of the major offence punishable under the second part of S.304, Both are independent and mutually exclusive offences. So also, this is not a case in which S.221 of the Code could be attracted. There is no question of any doubt regarding the offence which the facts will constitute. In a charge for an offence under 5.302 or 304, it is not possible to enter conviction for an offence under S.304-A without a charge under that section. That is clear from the illustrations also. 5.221 is applicable only in cases where a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute.”

10. In this connection it is relevant to refer the judgment rendered by the Supreme Court reported in [1994 KHC 962 : 1994 Supp (2) SCC 282 : 1994 SCC (Cri) 1234], Hardev Singh v. State of Punjab, placed by the learned Public Prosecutor, where the accused was charged for the offence punishable under Section 302 of IPC. In the said case in paragraphs 5 and 6 the Apex Court held as under :

                  “xxxx xxxx xxxx

                  As already mentioned the plea of the accused had been that some driver was driving the truck which went out of control resulting in accident and since the driver tried to avert, the truck went into the ditches and got stuck in the water. If really it was the intention of the driver, whoever he may be, to dash against the victims with a view to commit murder, he could have hit and proceeded. The fact that it got into the ditches would probabilise the theory of accident. Under these circumstances, we find it difficult to uphold the conviction of A4 for the offence of murder However, it is clear that he drove the vehicle in a rash and negligent manner and consequently he would be liable under S.304A IPC.

                  6. For the aforesaid reasons A3 Hardev Singh is acquitted and Criminal Appeal No. 12 of 1982 filed by him is allowed. All the convictions and sentences awarded against A4, Jaspal Singh are set aside. Instead he 'IS convicted under S.304A IPC and sentenced to undergo two years' RI. xxxx xxxx xxxx”

11. Before concluding the finding on point No.(iv), the evidence available to be evaluated. PW1 examined in this case is one Evan. He deposed during chief examination that he was an autorickshaw driver at Tripunithura stand and he had witnessed the occurrence. According to him, the occurrence was at 5.50 p.m on 14.01.2013. At the time of occurrence, he was standing on the bank of the river beneath the Thaikkoodam By-pass Bridge, adjacent to Kannadikkad Road. He was engaged in fishing by using fishing rod. His two minor children also were with him. They were standing one meter away from the place where he was standing and the same was on the tarred portion. According to him, an elderly man also was standing a little distance away from his daughters, ie. Irifa and Irika (children of PW1). While so, a Yamaha motorbike ridden in over speed and in a negligent manner was found coming and hitting on the elderly man. Soon he fell down on the road hitting his head. Then the bike also hit his two children. Thereafter the bike moved further and dashed against a concrete block and the rider of the motorcycle fell down. He deposed further that in the occurrence his two children also sustained injuries. Thereafter in an auto rickshaw the elderly man and two children were taken to Welcare hospital by him along with another man and the three injured persons were admitted there. Then it was informed that the elderly man was serious and he was taken to Medical Trust Hospital. According to him, the name of the elderly man is George. He testified further that Irika sustained injuries to her right hand, while Irifa sustained injuries to her left knee. According to him, motorcycle bearing Registration No.KLT BN 6698 hit against them and one George. He deposed further that the accused was the rider of the motorcycle at the time of occurrence and he identified him as the accused at the dock. He testified that the bike was ridden in over speed and in a rash manner. He also had given statement to the police.

12. During cross examination he deposed that he was questioned by the police only once before his examination before the court. Even though, it was suggested that the statement signed by him was not produced before the court, he answered that he had put his signature in the statement. During further cross examination, he stated that the occurrence took place from behind, he added that he had noticed the motorcycle approaching at a distance of 30-40 meters before the occurrence. Witness pointed out a distance of about 30-40 feet. He also stated that the rider of the motorcycle did not wear helmet and in the motorcycle there was no one other than the rider, who had worn T shirt and jeans. According to him, the motorcycle was driven with a speed of 80-100 miles. When it was suggested that a motorcycle could not move fastly in 80-100 miles he denied the same. He deposed about the details of the place of occurrence during further cross examination. Regarding identification of the accused, PW1 had given evidence that he had no familiarity with him and he did not disclose any signs to identify him before the police. But he stated that he was able to identify him on sight. Later he stated that he had shown the accused to the police at the hospital as the accused came to the hospital and the police also came to the hospital very soon. Accordingly he had shown the accused to the police. Thereafter he did not identify the accused at the instance of the police.

13. PW2 examined in this case is another witness to the occurrence and according to him the occurrence was at 5.50 p.m on 14.01.2013 and at the time of occurrence he was standing near the river in front of his house. He also deposed in tune with the version of PW1 as regards the occurrence. During chief examination itself, PW2 stated that the police had taken the accused and the bike and the accused also sustained injuries. Regarding hospitalisation of the injured, a pertinent omission was extracted during his cross-examination. the same could not be found in the statement given to the police.

14. PW3 examined in this case is one Manuel. He also deposed in tune with the version of PW1 and PW2. He also identified the accused as the rider of the motorcycle and according to him, the police had taken the accused and the bike. He had shown the place of occurrence. During cross examination, some immaterial omissions in his statement were elicited.

15. PW12 examined in this case is the minor injured, viz., Irifa. Upon conducting a voir dire examination, the Court found her competence to testify and accordingly she was examined. Admittedly, no statement of PW12 was recorded by the police during investigation. She supported the version of PW1 and also identified the accused as the rider of the motorcycle.

16. On scrutiny of the evidence given by the occurrence witnesses, they had witnessed the occurrence and, according to them, it was the appellant/accused, who had ridden the motorcycle at the time of occurrence. The prime contention raised by the learned counsel for the appellant/accused is that the appellant was not the rider of the motorcycle at the time of occurrence and it was driven by DW1 as deposed by him. In this connection anomaly as regards to seizure of the motorcycle records has been pointed out to contend that the police implicated the appellant/accused as the accused on verification of the records found in the motorcycle which was seized soon after the occurrence and according to him, this aspect could be found from the evidence of AMVI, who deposed that before seizure of the vehicle records the copies of the same were furnished by police for preparing AMVI report.

17. In this case, Ext.P7 is the wound certificate cum discharge summary dated 14.01.2013 issued from Medical Trust Hospital, Ernakulam, pertaining to George M.J. Ext.P8 is the death intimation issued from the same hospital as on 23.01.2013 to the Sub Inspector of Police, Edappally Traffic Police Station, informing that George M.J had died at 11.50 p.m on 22.01.2013 while undergoing treatment. PW8, Dr.Harikumar.A.N was examined to prove Exts.P7 and P8. According to him, he had issued Ext.P7 on getting admission of George.M.J in the hospital following a road traffic accident where a pedestrian was hit by a motorcycle at Maradu at 5.45 p.m on 14.01.2013. As per Ext.P7 and as deposed by PW8, the patient was brought to the hospital in a drowsy and disoriented condition. There was a contusion with heavy mull on the left temporo parietal region. He had further deposed that the C.T scan of the brain showed fonchire bilateral high parietal comminuted fracture with extradural hematoma and sub-arachnoid hemorrhage and accordingly the patient was admitted. He also deposed that M.J.George died due to the severe head injury sustained in the accident. Thus, the medical evidence would show that M.J.George died due to severe head injury caused as a result of the accident.

18. It is relevant to note that here the occurrence witnesses, including minor witness who was found to be competent to give rational answers, gave evidence before the court that the appellant/accused had ridden the motorcycle on the date of occurrence and dashed down George which led to his death and resulted injuries to PW12 and her sibling. In such a case, some anomaly regarding seizure of the vehicle records pointed out by the learned counsel for the appellant would not take away the entire prosecution case as unbelievable. Here the evidence of PW1 is that only the rider was in the motorcycle at the time of occurrence and he was able to identify him. His further evidence is that he had shown the accused to the police when he was at the hospital. It is pertinent to note that DW1, who claimed to have ridden the motorcycle at the time of occurrence also admitted that the accused and himself were at the hospital. Thus identification of the accused at the hospital is corroborated by the evidence of DW1. The main contention raised by the learned counsel for the appellant/accused is that the appellant was not the rider of the motorcycle, and it was ridden by DW1. DW1 deposed that he rode the motorcycle at the time of occurrence, keeping the accused as his pillion. His version further is that the accused drunk wine and because of it, he had taken him on the motorcycle. He also deposed that at the hospital, the accused was asked to blow to a machine to find whether he consumed alcohol, but then he volunteered that he was the rider of the motorcycle. Thus the evidence of DW1 would suggest that there was attempt to show DW1 as the rider of the motorcycle, instead of the accused, but the evidence of PW1 to PW3 and PW12 would show that it was the accused who had ridden the motorcycle at the time of occurrence. Therefore, the contention raised by the learned counsel for the appellant that the accused was not the rider of the motorcycle at the time of occurrence, instead it was ridden by DW1 could not be accepted. That apart, PW1 specifically identified the accused as the rider of the motorcycle at the time of occurrence by stating that he had shown the accused to the police when he was at the hospital.

19. Having re-appreciated the evidence, the learned Sessions Judge is right in finding that the accused committed the offences punishable under Sections 279 and 337 of IPC as well as under Section 146 r/w 196 of the MV Act. Similarly, the learned Sessions Judge is right in finding that the prosecution established the ingredients for the offence punishable under Section 304A of IPC and for want of specific charge for the said offence, the accused was not convicted or sentenced holding that 304A is not a minor offence under Section 304 of IPC.

20. Coming back to point No.(iv), it is relevant to hold that offence under Section 304A is technically an independent offence rather than strictly a lesser offence under Section 304 of IPC. At the same time, the legal system allows conversion of conviction and sentence for the offence under Section 304 of IPC to one under Section 304A of IPC, even without a separate charge as could be decipherable from the decision in Hardev Singh v. State of Punjab‘s case (supra). In the instant case, no appeal was preferred by the State against the judgment whereby the learned Sessions Judge was not inclined to impose conviction and sentence on the accused for the offence punishable under Section 304A of IPC. Therefore, this Court cannot convict and sentence the appellant in the absence of an appeal filed by the State. In such a situation, this Court is duty bound to consider the option available to a Court where the trial was conducted on framing charge for the offence punishable under Section 304 of IPC, but the said offence could not be found from the evidence and the evidence available would constitute offence under Section 304A of IPC. It is well settled law that a criminal court holds the power to alter or amend charges at any stage before the judgment is pronounced. Section 261 of The Criminal Procedure Code (‘Cr.P.C’ for short) specifically provides that any court may alter or add any charge at any time before pronouncement of judgment. For clarity, Section 216 of Cr.P.C is extracted as under:

                  “216. Court may alter charge.—(1) Any Court may alter or add to any charge at any time before judgment is pronounced.

                  (2) Every such alteration or addition shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

                  (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.

                  (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.”

21. Section 239 of Bharatiya Nagarik Suraksha Sanhita is pari materia to Section 216 of Cr.P.C. Thus the proper course available to a Court, when it found that an accused who was tried for the offence punishable under Section 304 of IPC did not commit an offence under Section 304 of IPC but he committed offence punishable under Section 304A, is to alter the charge and proceed further in accordance with law, including recording fresh evidence and affording opportunity to the accused to defend the altered charge for the offence punishable under Section 304A of IPC.

22. Having addressed the factual events and the evidence available, this Court has no hesitation to hold that a substantial failure to alter the charge, before delivering the judgment, was committed by the learned Sessions Judge. Since no appeal preferred by the State, the impugned judgment is liable to be set aside for the purpose of remanding the matter to the Sessions Court with a direction to alter the charge to one under Section 304A of IPC and to proceed further in accordance with law and thereafter deliver judgment thereof, while confirming the finding of the learned Sessions Judge that the appellant/accused committed offences under Sections 279 and 337 of IPC as well as under Section 146 r/w 196 of the MV Act.

23. In the above circumstances, this appeal is allowed as indicated below:

                  (i) The judgment impugned is set aside;

                  (ii) The matter is remanded back to Additional Sessions Court-I, Ernakulam, to consider the same again by altering the charge of Section 304 of IPC to 304A of IPC and, to record further evidence, if any, in addition to the evidence recorded already and to proceed further in accordance with law and deliver judgment thereafter, within a period of three months from the date of receipt of a copy of this judgment.

                  (iii) The appellant/accused is directed to appear before the Additional Sessions Court-I, Ernakulam, on 17.09.2026.

24. The Public Prosecutor also to appear on the said date.

Registry is directed to forward a copy of this judgment to the Additional Sessions Court-I, Ernakulam, for compliance and information.