Tom Jose v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 2[ND] DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943** **CRL.REV.PET NO. 553 OF 2021** **CRIME NO.415/2015 OF Payyavoor Police Station, Kannur** **SC 542/2016 OF SPECIAL COURT FOR TRIAL OF OFFENCES UNDER POCSO ACT,** ## **THALASSERY, KANNUR** ## **REVISION PETITIONER/ACCUSED NO.2:** **TOM JOSE, AGED 50 YEARS S/O. JOSEPH, MURIKKANOLICKAL HOUSE, PAYYAVUR, PAISAKKARI, KANNUR DISTRICT.** **BY ADVS. M.T.SURESHKUMAR R.RENJITH** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **SENIOR PUBLIC PROSECUTOR SRI. C.S. HRITHWIK** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON** **02.11.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P.553/21 2 ## **O R D E R** This is a criminal revision petition filed under Sections 397 and 401 of the Code of Criminal Procedure. Petitioner is the 2[nd] accused in S.C.No.542/2016 pending before the Additional Sessions Court, Thalassary, where himself and the 1[st] accused face allegations under Section 304 read with 34 of the Indian Penal Code. The unfortunate incident, which led to the registration of crime No.415/2015 of Payyavoor police station, had happened on 15.7.2015 at 15.45 hours. The petitioner is a teacher in Hindi in Cherupushpa U.P. School, Chandanakampara. That day the incident had happened in bus No.KL-59 L 3288 owned by the said school while taking the children back to their respective houses. The bus was driven by the 1[st] accused and the petitioner was temporarily deployed that day for taking care of the children, in the absence of the 'Ayah'. 2. Going by the charge sheet, that day at 15:45 hours when the bus reached at a place by name Mavumchal in Payyavoor amsom, the 1[st] accused, knowing that his act would cause the death of the child, kept Crl.R.P.553/21 3 open the hydraulic door of the bus causing the child to fall on the road through the door and then the rear tyre of the vehicle ran over the child and caused his death. While the bus was moving ahead, it fell into a pit and in the shake that followed, the bag carried by the four year old boy, Godwin, S/o. Abhilash, who was sitting near the side seat of the door, fell down; when he was about to catch hold of the bag, the child happened to slip out of the bus through the door and the hind left wheel ran over the child resulting in his instantaneous death. Thus AnnexureA1 FIR was registered in Payyavoor police station against the driver of the bus alleging offence under Sections 279 and 304A of the IPC. 3. After completion of investigation, charge sheet was laid alleging offence under Section 304 read with 34 of the IPC against the driver as well as the petitioner, showing him as the 2[nd] accused. When appeared before the Sessions Court, he moved an application under Section 227 of the Cr.P.C. which was dismissed by the Court by the impugned order dated 02.12.2020. By the said order, the application for discharge was dismissed. Aggrieved by the same the petitioner has moved this Court in revision under Section 397 of the Cr.P.C. Crl.R.P.553/21 4 4. I heard the learned counsel for the petitioner and also the learned Senior Public Prosecutor elaborately. 5. Inviting my attention to Annexure-A2 report of the Motor Vehicles Inspector issued after inspecting the vehicle, the learned counsel pointed out that the pneumatic control door of the bus was not functioning properly and at the time of the accident, it was remaining open. According to the learned counsel, even assuming that there was some negligence or act which resulted in the death of the child, only the driver can be held responsible and the petitioner who was only travelling along with the children had no role in the control of the vehicle or the door. Referring to Sections 299 and 304 of the IPC he said that in order to attract any ingredient under Section 304 IPC there must be positive act played by the accused persons. Moreover, it is far-fetched to say that he had acted in furtherance of any common intention for causing the death of the child. Independently also such an allegation will not lie against the petitioner. 6. Inviting my attention to a certificate issued by the Head Master dated 20.07.2015, the learned Senior Public Prosecutor submitted Crl.R.P.553/21 5 that he was deployed that day to take care of the children travelling in the bus. According to him, there are materials to suggest that at the time of the incident he was standing at the door. Learned Public Prosecutor argued that the petitioner can prove his innocence only after trial. 7. After hearing counsel on both sides, I have no doubt in my mind that the allegations against the petitioner are far-fetched and unfounded. In order to attract an offence under Section 304 of the IPC, as rightly pointed out, there must be positive act accompanied by intention or knowledge to attract the offence, as the case may be. The Hon'ble Supreme Court, in the oft quoted decision in **Union of India v. Prafulla Kumar Samal and another [AIR 1979 SC 366],** has laid down the following principles : “(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been Crl.R.P.553/21 6 properly explained the Court will be fully justified in framing a charge and proceeding with the trial; (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused; (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a PostOffice or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” 8. It has come out that the name of the petitioner was not in the Crl.R.P.553/21 7 first information report. But that would not give any advantage to an accused whose name appears in the final report. All the same, there must be satisfactory evidence to say that at least there are suspicious circumstances to rope in a person. When an offence under Section 304 of the IPC is alleged, the following essential ingredients have to be brought in:- 1. There was death of a human being for which there is no dispute; 2. Such death was caused by an act: - a. that the intention to cause death unless any of the five exceptions of Section 300 is present; - b. that the intention of causing such bodily injury as is likely to cause death; - c. that the knowledge that it is likely to cause death. 9. After evaluating the materials placed before Court, I do not find my way to find any of these basic ingredients against the petitioner. As rightly pointed out by the learned counsel for the petitioner, in order to attract ingredients under Sections 299 or 304 IPC, there must be a positive act accompanied by an intention or knowledge as the case may Crl.R.P.553/21 8 be. It could be argued that the petitioner, at the most, could not prevent the fall of the child through the door, while he was standing at the door at the time of the incident. But the door remained open which act cannot be attributed against the petitioner. Hydraulic system of the door of the vehicle was not functioning, which is evident from the report of the Motor Vehicles Inspector. In other words, even allegation of negligence also cannot be attributed against him. 10. As rightly pointed out by the learned counsel, even though the learned Judge has well said the principles of law, has failed to apply such principles to the facts of the case. It does not seem that even a cognizable lesser offence under Section 304A of the IPC can be alleged against him. It also does not know as to how Section 34 of the IPC will lie against him. In order to bring any material to say that the accused persons had acted in furtherance of their common intention, there must be presence, participation and active concert. The materials produced by the prosecution do not suggest that the petitioner had done anything in furtherance of the common intention with the first accused. 11. While considering the legality, correctness and the propriety Crl.R.P.553/21 9 of the order, I have no doubt that the learned Sessions Judge went wrong in considering the matter in proper perspective. Resultantly, he went wrong in deciding to frame charge against the petitioner. The order under challenge is liable to be interfered with. The revision is allowed and the petitioner shall stand discharged. Sd/- **K.HARIPAL JUDGE** okb/2.11 //True copy// P.S. to Judge