Karnataka High Court
Lakshmi Devi vs State Of Karnataka on 7 August, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
CRIMINAL PETITION NO. 3186/2011
BETWEEN:
LAKSHMI DEVI,
W/O KEMPU LAKSHMAPPA
AGED ABOUT 38 YEARS
R/O BHIMA SAMUDRA VILLAGE,
CHITRADURGA TALUK
CHITRADURGA DISTRICT.
... PETITIONER
(BY SRI VISHNU MURTHY, ADV.)
AND:
STATE OF KARNATAKA
BY CHITRADURGA RURAL PS
... RESPONDENT
(BY SRI M.DIWAKAR MADDUR, HCGP)
***
THIS CRL.P. IS FILED UNDER S.482 OF Cr.P.C.
PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST
THE PETITIONER IN CC NO.1475/2009 PENDING ON THE FILE
OF THE ADDL. CIVIL JUDGE (JR.DN.) AND JMFC,
CHITHRADURGA.
THIS CRL.P. COMING ON FOR DICTATING ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
The present petition has been filed by the petitioner - accused No.2 - Lakshmidevi praying this Court to quash the entire proceedings against her in CC No.1475/2009 pending on the file of Addl. Civil Judge (Junior Division) & JMFC, Chithradurga for the offence punishable under Section 304-A of IPC.
2. The brief facts of the case as averred in the petition are:
That on 27.05.2009 at about 2.30PM one H.Erappa S/o Hanumanthappa, aged about 60 years, resident of Bhimasamudra Village, Chithradurga District filed a complaint alleging that he is residing in the said address and his father is having three sons all are married and are residing separately and he is the eldest one. He further alleged that from past four years his younger brother - H. Rajappa was working with one Kumara Naika - accused No.1 who has taken the land of Lakshmi Devi - accused No.2, the present 3 petitioner, on lease basis, which is situated at Avalihatti Village and he was also residing there itself. It is further alleged that the said land which was taken on lease by the said Kumara Naika - accused No.1 on contract basis has water facility and they had put a bore well along with power facility. In the said land Arecanut plants were grown. It is further alleged that his brother is having three children and his wife had already passed away and they are residing in their grand mother's house and his brother is residing in the said land taken on lease by Kumara Naik - accused No.1. It is further alleged that the Complainant used to visit his brother often.
3. On 27.05.2009, the Complainant has gone to the said land to invite his brother for village festival at about 11.30PM. He met his brother and invited for lunch and during that time his brother told him that he will go near the bore well. While passing near the fence due to current shock his brother fell down and succumbed. It is further alleged that after hearing the noise, the Complainant and others went 4 near the panel board and saw that there was a power connection from the panel board to fencing. It is further alleged that Kumara Naik - accused No.1 has negligently taken the power supply from the panel board to fencing due to which the incident has taken place. Thereafter, the children of deceased Rajappa on getting the information lodged a complaint to the Police.
4. On the basis of the said complaint, a case is came to be registered in Cr. No. 342/2009 for the offence punishable under Section 304-A IPC. After investigation respondent filed charge sheet against accused persons for the offence punishable under Section 304-A r/w 34 IPC and petitioner herein has been arrayed as accused No.2 in the said case. Challenging the same the accused No.2 - petitioner herein is before this Court.
5. I have heard the learned counsel Sri Vishnu Murthy for petitioner and Mr. M.Diwakar Maddur, learned HCGP for respondent - State.
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6. It is the contention of the learned counsel for petitioner - accused No.2 that as per the case of the prosecution though the petitioner is the owner of the land bearing Sy. No.149/1, but the said land has been given to accused No.1 - Kumara Naila for cultivation on lease basis about four to five years back and that there was no physical possession or the control over the said land with the petitioner - accused No.2. It is his further contention that in order to prove the prima facie case, the prosecution has to show that the cause of death of deceased Rajappa was due to the Act of negligent on the part of the petitioner. The entire prosecution material clearly goes to show that there is no material placed on record to show that the petitioner was negligent and rash in connecting electricity to the fence and as a result of the same the deceased - Rajappa died. He further submit that the entire investigation papers disclose the fact that the electric connection was taken by the accused No.1 and it is in no way connected to the accused No.2. In that light, he submits that there is no material as against the accused No.2 - petitioner to proceed with the trial and as 6 such he prays to quash the proceedings as against petitioner
- accused No.2.
7. Per contra, the learned HCGP appearing for respondent - State vehemently argued by contending that the land bearing Sy. No. 149/1 belonging to accused No.2 - petitioner herein and the said lease agreement entered into between the accused No.1 and 2 is on crop sharing basis and she also often use to visit the said place and was also having control over the said land and it was also within her knowledge that the fencing has been connected with electricity. It is further submitted that the evidence which has been produced clearly goes to show that the petitioner - accused No.2 was also negligent at the time of alleged incident and in that light the investigating agency has properly investigated and charge sheet has been filed against the accused persons. He also submits that, at this juncture, it cannot be said that there is no material as against the petitioner - accused No.2 and he prays to dismiss the petition. 7
8. I have heard the submissions made by the learned counsel for petitioner as well as learned HCGP and also perused the entire records.
9. In so far as the fact that the said land bearing Sy. No. 149/1 has been given by the accused No.2 - petitioner herein to accused No.1 on lease basis is concerned, is not in dispute. In order to bring home the guilt of the accused under Section 304-A IPC, it is necessary that the death should have been the direct result of a rash and negligent act of the accused and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the cause cauans; it is not enough that it may have been the cause sine qua non.
10. The aforesaid proposition of law has been laid down by the Hon'ble Supreme Court in the case of SULEMAN REHIMAN MULANI & ANOTHER vs STATE OF MAHARASHTRA reported in AIR 1968 SC 829, which reads as under:
"The scope of Section 304-A IPC came to be considered by this Court in Kurban Hussein 8 Mohammedali Rangwalla v. State of Maharashtra. In our opinion, the ratio of that decision governs the facts of the present case. The facts of that case were. The appellant was the manager and working partner of a firm which manufactured paints and varnish. The factory was licensed by the Bombay Municipality on certain conditions to manufacture paints involving a cold process and to store certain specified quantities of turpentine, varnish and paint. The factory did not have a licence for manufacturing wet paints but nevertheless manufactured them. Four burners were used in the factory for the purpose of melting rosin or bitumen by heating them in barrels and adding turpentine thereto after the temperature cooled down to a certain degree. While this unlicensed process was going on froth overflowed out of the barrel and because of heat varnish and turpentine, which were stored at a short distance caught fire, as a result of which seven workmen died. The appellant was prosecuted and convicted under Section 304-A and Section 285 IPC. His appeal was summarily dismissed by the Bombay High Court. This Court set aside the conviction under Section 304-A IPC, holding that the mere fact that the appellant allowed the burners to be used in the same room in which varnish and turpentine were stored, even though it would be a negligent act, would not be enough to make the appellant responsible for the fire which broke out. In the course of the judgment this Court observed that the cause of the fire was not merely the presence of the burners within the room in which varnish and turpentine were stored, though that circumstance was indirectly responsible for the fire which broke out; what Section 304-A requires is causing of death by doing any rash or 9 negligent act and this means that death must be the direct or proximate result of the rash or negligent act. On the basis of the facts of that case, this Court held that the direct and proximate cause of the fire which resulted in seven deaths was the act of one of the workmen in pouring the turpentine too early and not the appellant's act in allowing the burners to burn in the particular room. In the present case, we do not know what was the proximate cause of the accident. We cannot Rule out the possibility of the accident having been caused due to the fault of the deceased. The question whether Appellant 1 was proficient in driving a jeep or not does not conclude the issue. His proficiency in driving might furnish a defence, which a learner could not have, but the absence of proficiency did not make him guilty. The only question was whether, in point of fact he was not competent to drive and his incompetence was the cause of death of the person concerned".
11. In another decision reported in the case of AMBALAL D. BHATT vs THE STATE OF GUJARAT reported in (1972) 3 SCC 525, the Hon'ble Supreme Court has held in paras 10 and 11, as hereunder:
"It appears to us that in a prosecution for an offence under Section 304-A, the mere fact that an accused contravenes certain rules or regulations in the doing of an act which causes death of another, does not establish that the death was the result of a rash or negligent act or 10 that any such act was the proximate and efficient cause of the death. If that were so, the acquittal of the appellant for contravention of the provisions of the Act and the rules would itself have been an answer and we would have then examined to what extent additional evidence of his acquittal would have to be allowed, but since that is not the criteria, we have to determine whether the appellant's act in giving only one batch number to all the four lots manufactured on November 12, 1962, in preparing batch No.211105, was the cause of deaths and whether those deaths were a direct consequence of the appellant's act, that is, whether the appellant's act is the direct result of a rash and negligent act and that act was the proximate and efficient cause without the intervention of another's negligence. As observed by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap, the act causing the deaths "must be the causa causans; it is not enough that it may have been the cause sine qua non".
This view has been adopted by this Court in several decisions. In Kurban Hussein Mohammedali Rangwala v. State of Maharashtra, the accused who had manufactured wet paints without a licence was acquitted of the charge under Section 304-A because it was held that the mere fact that he allowed the burners to be used in the same room in which varnish and turpentine were stored, even though it would be a negligent act, would not be enough to make the accused responsible for the fire which broke out. The cause of the fire was not merely the presence of the burners within the room in which varnish and turpentine were stored, though this circumstance was indirectly responsible for the fire which broke out, but was also due to the 11 overflowing of froth out of the barrels. In Suleman Rehiman Mulani and Another v. State of Maharashtra, the accused who was driving a car only with a learner's licence without a trainer by his side, had injured a person. It was held that that by itself was not sufficient to warrant a conviction under Section 304-A. It would be different if it can be established as in the case of Bhalchandra alias Bapu and Another v. State of Maharashtra, that deaths and injuries caused by the contravention of a prohibition in respect of the substances which are highly dangerous as in the case of the explosives in a cracker factory which are considered to be of a highly hazardous and dangerous nature having sensitive composition where even friction or percussion could cause an explosion, that contravention would be the cause causans.
Bearing these principles in view, what we have to see is: (1) whether there was a contravention of the rules? If so, to what extent that contravention by the appellant contributed to the non-discovery of lead nitrate in sodium chloride content of the glucose saline in batch No.211105? (2) Whether sodium chloride from which the said solution was prepared was obtained by the appellant from sources other than the Stores of S.C.I. Ltd.? And (3) Whether the method adopted in testing the said batch by Prabhakaran would have, but for the contravention of the rules requiring the giving of one batch number to each lot, detected the presence of lead nitrate when he analysed samples of the offending batch of glucose saline prepared by the accused. The answers to these questions will determine whether the appellant's act is cause causans or has there been a cause 12 interveniens which has broken the chain of causation so as to make his act, though a negligent one, not the immediate cause or whether it amounts to an act of gross negligence or recklessly negligent conduct. In this context it may be observed that in a case of this nature where as many as 12 persons lost their lives as a result of the parenteral administration of the drug comprised in batch No.211105, prepared by the appellant, those deaths however shocking and regrettable they may be, ought not to allow the mind to boggle while appreciating the evidence which must necessarily be free from any such consideration."
12. Further, the Hon'ble Supreme Court in another decision in the case of BALWANT SINGH vs STATE OF PUNJAB AND ANOTHER reported in 1994 SUPP (2) SCC 67, at Para-10 held thus:
"In the instant case, as held above the appellant did not aim at the two deceased persons who were away. It was night time and it cannot definitely be said that the appellant could have seen them. In fact PW 11 and his brother Fauja Singh who started assaulting H.C. Sat Pal and the appellant were not hit by the shots fired by the appellant. That itself shows that the appellant fired his rifle without any aim and obviously to scare away the people including PW11 and his brother and he did so as directed by H.C.Sat Pal who was in command of the police party. However, even in such a situation, he had to act in a prudent manner. But when 13 he acted in such a haste, rashly and without circumspection and due care and caution with regard to the safety of other innocent people, then the only inference is that his rash act amounted to culpable rashness attracting the provisions of Section 304-A IPC."
13. In the aforesaid decisions the Hon'ble Supreme Court has observed, in a nut shell, that in order to connect the accused for the offence punishable under Section 304-A IPC, it is necessary that the death should have been direct result of rash and negligent act of the accused and that act must be proximate and efficient cause without the intervention of another's negligence. It must be the cause causans, it is not enough that it may have been the cause sine qua non.
14. Keeping in view the said proposition of law, if we see the facts and circumstance of the case on hand, it is the case of the prosecution that it was the accused No.1 who was cultivating the land bearing Sy. No. 149/1 and it is also reveal that the said land was given by the accused No.2 - petitioner herein, to accused No.1 - Kumara Naika for cultivation on 14 lease basis about four or five years back. Further, there is no material produced by the prosecution to show that there was negligent act of the accused and the said act is proximate and efficient cause without the intervention of another's negligence. But, in the instant case, it is clear that the accused No.1 was having possession of the land and he is staying there itself. When that being the case, then under such circumstance it is the accused No.1 who was having the control over the said landed property. Under such circumstance, when the intervention of another person will be there and he is to explain that how the alleged incident has taken place. Even the records clearly goes to show that the presence of the accused No.2 - petitioner herein was also not stated any where, even in the complaint, when it was came to be filed before the Police.
15. By going through the material on record, it clearly goes to show that there was no nexus between the death of the deceased - Rajappa and the accused No.2 - petitioner herein. In this behalf the material is lacking and the charge 15 sheet also does not disclose anything in this regard. In view of the said facts and circumstances of the case, I feel it there is no material as against the petitioner - accused No.2 to proceed against to face the trial. If no material is forthcoming on record and if the accused No.2 is asked to face the trial, then, under such circumstance, it will cause an injustice and hardship to the petitioner - accused No.2.
16. In that light, the petition is allowed. The proceedings as against the petitioner - accused No.2 in CC No. 1475/2009 pending before the learned Civil Judge (Jr. Dn.) and JMFC at Chithradurga, is quashed.
Sd/-
JUDGE VK