The High Court of Kerala on 26th February 2021 convicted a boat driver for negligence which caused the death of 15 children in 2007.
In 2007, a group of a little over 100 children and a dozen teachers were on their yearly school trip around the Kothamangalam Town in the Ernakulam District of the State of Kerala. They decided to end the trip after a boat ride through the Periyar River.
Unfortunately, this boat ride ended the lives of 15 children along with 3 teachers. It was alleged that the accused (owner and driver of the boat) carried 61 people in a boat having a capacity of only 6 passengers. Thus, due to overloading, while the boat was being turned to return, water started seeping through a hole in the rear end and sank it. The boat driver was held under the charges of culpable homicide not amounting to murder.
The learned Sessions Judge found the accused guilty for the offence under Sec.304 IPC and sentenced him to rigorous imprisonment for 5 years and to pay a fine of Rs.1, 50, 000. The fine amount, on realization, was directed to be paid equally to the parents of the deceased children as compensation.
Aggrieved by this, the appeal had been filed by the accused in the HC.
Submissions in the court:
The counsels for the appellant and the public prosecutor were present along with the parents of two victims and their counsels who were permitted to assist the prosecution.
Counsel for the Appellant:
It was submitted that the prosecution had miserably failed to prove guilt. Further, the ingredients of Sec.304 were not attracted in the current case and nothing was brought to evidence that would show the knowledge of the driver that the act done by him would cause death of the victims. Actions of the passengers were relied upon to show that the accident was caused due to those acts and thus, even conviction under Sec.304 A could not be attracted.
Counsels from the Prosecution:
It was stated that the act of the accused comes under the ambit of Sec.304 as the death of 18 people was caused. There was no lifesaving equipment; unscientific modification was made to the boat; no display of capacity, permit, and fitness certificate to play the boat on water. The driver was also the owner of the boat and this clearly showed his knowledge.
Proceedings in the Court:
The accused did not deny the ownership and driving of the boat. It was also not denied that while having the capacity of 6 persons, 61 people were on board. However, the reason for drowning of the passengers was disputed. According to him, the boat tilted because some students went to one side to watch some birds and, suddenly, a teacher jumped out of the boat. The inspector of boats stated had issued a certificate to another person, who then sold the boat to the accused. Although it could carry 2 tons of weight, permission was only given for 6 passengers. Further, when there were alterations made to the boat, a fitness certificate was to be obtained, which was not done. If only a permitted amount of passengers were on board, even if the passengers tilted to one side, the boat could not have been capsized. There was no hole in the boat.
According to the prosecution witnesses, it was discernible that in an unscientifically modified boat, the accused carried passengers beyond the limits of capacity, without proper licenses and without containing life-saving equipment. The evidence also proved that the passengers moved towards one side of the boat causing it to tilt. Witnesses also stated that the accused tried his best to save the passengers from drowning.
The main question arose, “Whether the accused had committed an offence coming under Sec.304 of the IPC?”
Decision of the Court:
Hon’ble Judge, Bechu Kurian Thomas decided the question by dissecting the section. Thus, the prosecution had to prove that (i) an act was done by the accused, (ii) the said act caused death, and, (iii) the said act was done with the knowledge that it is likely to cause death.
For the same, statements of various witnesses were taken, although they seemed inconsistent. A mere knowledge that if there was overloading on a boat, the possibility of sinking, was not the required knowledge contemplated to bring home a case of culpable homicide.
“The degree of knowledge required to bring an act within the realm of culpable homicide must be a knowledge that is almost on the verge of certainty and not a mere possibility.”
Thus, the offence under Sec.304 was ruled out. Thus, while ascertaining offence under Sec.304A, negligence and rash act was to be shown. Here, the accused was the owner and driver of the boat. He was the one to navigate it as well. This act of Navigation starts as soon as passengers come onboard and ends when the last passenger gets off board. As stated above, he was fully aware of the situation of his boat, and yet boarded 61 members at a permission of only 6. Neither did he have life-saving equipment, nor proper requirements onboard. This act of navigation was in gross disregard of the consequences without sufficient precautions, amounted to gross negligence and rashness warranting to guilt under Sec.304A.
While considering the sentence, it was to be made sure that such is not given in a liberal attitude, rather must be in proportion to the conscience of the society, reflecting a response to society’s cry for justice. It was the responsibility of the driver that he followed all the requirements for safety.
Thus, the accused was liable to be imposed with maximum punishment under Sec.304A. Thus, the conviction of the trial court of 2years imprisonment along with fine was to be imposed. In case of delay in fine, a further 6 months imprisonment was stated.
The respondents however stated that the amount was too meagre to be distributed amongst the victims’ families and thus it should be increased. Although the Judge agreed, he was of the opinion that an increase would have to be looked at through various aspects, and thus gave liberty to victims to initiate proceedings in the State Legal Services Authority.
Story by Sai Kulkarni-Intern