Bangalore District Court
And Was Not The Proxinate And Efficient ... vs And The Factum Of Death. Thirdly And More on 18 November, 2020
IN THE COURT OF THE VIII ADDL. C.M.M., BENGALURU.
Dated this the 18th Day of November 2020
Present: Sri.Vignesh Kumar, LL.M.
VIII ADDL.C.M.M., BENGALURU.
C.C. NO.4329/2016
JUDGMENT U/S 355 OF THE Cr.P.C. 1973.
1. Sl. No. of the Case 4329/2016
2. The date of commission 17/09/2014
of the offence
3. Name of the complainant State by J.C.Nagara P.S.
4. Name of the accused B.S.Hari s/o M.Sheenappa,
aged 49 years, r/a No.37/1,
17th main, Muneshwara Block,
11th Cross, Gajendranagara,
Bangalore - 26.
5. The offence complained of U/s. 304(A) of IPC
or proved
6. Plea of the accused and Pleaded not guilty
his examination
7. Final Order Acting U/sec.255(1) Cr.P.C.
accused is acquitted
8. Date of such order 18112020
For the following:
2 C.C.No.4329/2016
JUDGMENT
This is a charge sheet submitted by Police SubInspector of Kalasipalya PS against the accused for an offence Punishable U/Sec. 304(A) of IPC.
2. The case of the prosecution in brief is as under:
The accused is the contractor for the maintenance of electric poles at Southern Division of BBMP. On 17092014 at 8.45 p.m., child by name Kum.Anandi aged 7 years died due to electrocution due to the negligent act of the accused contractor. It is alleged that insulation tape which was put to the electric wire connecting to junction box attached to the electric pole was in deteriorated state and as such, the electricity passed on to the electric pole which was made up of iron metal and the deceased child who was going to the shop to purchase snacks touched the said electric pole which was 3 C.C.No.4329/2016 situated adjacent to M.S.Building compound of Kalasipalya, without observing the defect in it. As she touched the electric wire and the electric pole, the electric current passed onto her body. Due to the said electrocution the said child died at the spot. Regarding the said incident father of the child by name CW1 P.Krishnan filed first information before the jurisdictional police.
3. After registration of FIR the concerned police drew spot mahazar, inquest mahazar, recorded the statement of witnesses collected documents to fix criminality on to the accused, obtained expert opinion from the BESCOM Department, collected PM Report and other documents. After conclusion of the investigation filed charge sheet before this Court against the accused for the aforementioned offences.
4. Accused was on bail. Substance of accusation was read over to the accused for the offence punishable U/s. 304(A) of 4 C.C.No.4329/2016 IPC. The accused has pleaded not guilty and submitted that he has defence to make.
5. In order to substantiate the allegation, prosecution has examined 7 witnesses as PW1 to PW7 and got marked Ex.P1 to P19. Accused has been questioned u/sec. 313 of Cr.PC and he has denied the incriminatory materials. He has not preferred to lead his evidence.
6. Heard the arguments.
7. The points that would arise for my determination in this case are as under:
1. Whether prosecution proves that beyond all reasonable doubts that due to the rash or negligent act of the accused contractor in not properly maintaining the electric pole situated adjacent to M.S.Building compound wall of Kalasipalya, a child by name Anandi aged 7 years who had been to the shop to purchase snacks 5 C.C.No.4329/2016 accidentally touched the said electric pole which was not properly maintained by the accused and due to the electric shock died at the spot and thereby the accused committed an offence punishable U/s.304(A) of IPC?
2. What Order?
8. My findings on the above points are as under:
Point No.1 : In the Negative.
Point No.2 : As per final order,
for the following:
REASONS
9. Point No.1: In order to prove its case, the prosecution got examined all together 7 witnesses and got marked Ex.P1 to P19 documents. The first informant and the father of the deceased child is examined as PW1. Mother of the deceased is examined as PW2. The alleged eyewitnesses to the incident are examined as PW3 and 4. The Deputy Electric Inspector who had examined the spot and filed report as per Ex.P7 is 6 C.C.No.4329/2016 examined as PW5. One of the witness to Ex.P2 mahazar is examined as PW6. The IO is examined as PW7. Inspite of issuance of proclamation one of the witness to Ex.P2 mahazar i.e., CW5 did not appear and as such he is dropped. Learned Sr.APP has given up CW8 to 10 and 12.
10. In a case involving death by electrocution punishable u/s 304A of IPC the prosecution is required to prove the following essential ingredients:
(i) Death due to electrocution,
(ii) Identity of the accused,
(iii) Rash or negligent act of the accused in not properly maintaining the electric devices.
11. To understand the concept of rash or negligent act under Section 304(A) of IPC, it would be proper to refer to the decision of Hon'ble Supreme Court in the case of Prabhakaran v. State of Kerala, (2007) 14 SCC 269 :
(2009) 1 SCC (Cri) 873 at page 271, wherein the Hon'ble Supreme Court proceeds to hold that only 7 C.C.No.4329/2016 culpable negligent act and rashness amounts to an offence. The relevant para is culled out as follows:
"7. Section 304-A 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 offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means 8 C.C.No.4329/2016 hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused." (Emphasis supplied)
12. Further it would be apt to quote another decision Hon'ble Apex Court in the case of Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra, (1965) 2 SCR 622 : AIR 1965 SC 1616 : (1965) 2 Cri LJ 550 wherein, after referring to a preindependence judgment, the yardstick for proving the criminal negligence act under Section 304(A) of IPC is held to be such that it must be proximate and efficient cause without the intervetion of a third party. The relevant para no.3 is reproduced below:
"3. We may in this connection refer to Emperor v. Omkar Rampratap [(1902) IV Bom LR 679] where Sir Lawrence Jenkins had to interpret Section 304-A and observed as follows:
"To impose criminal liability under Section 304-A Indian Penal Code, 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 causans; it is not enough that it may have been the cause sine qua non."9 C.C.No.4329/2016
This view has been generally followed by High Courts in India and is in our opinion the right view to take of the meaning of Section 304-A. It is not necessary to refer to other decisions, for as we have already said this view has been generally accepted. Therefore the mere fact that the fire would not have taken place if the appellant had not allowed burners to be put in the same room in which turpentine and varnish were stored, would not be enough to make him liable under Section 304-A, for the fire would not have taken place, with the result that seven persons were burnt to death, without the negligence of Hatim. The death in this case was therefore in our opinion not directly the result of a rash or negligent act on the part of the appellant and was not the proxinate and efficient cause without the intervention of another's negligence. The appellant must therefore be acquitted of the offence under Section 304-A." (Emphasis supplied)
13. Thus by applying the above decisions to the present case in hand, inorder for the prosecution to prove the ingredients of Section 304(A) of IPC, there should be clear and cogent evidence to show that the death has taken place due to the direct rash or negligent act of the accused. Secondly, there 10 C.C.No.4329/2016 should be proximaty between the rash or negligent act of accused and the factum of death. Thirdly and more importantly, there should not be a third party intervention or contributory negligence.
14. Upon perusal of the oral evidence led by the prosecution it is forthcoming that PW1 to 4 are not an eye witnesses to the incident. However, they have spoken with regard to the death of Anandi due to the electrocution. Unfortunately, for the prosecution PW1 to 4 have not spoken anything with regard to the rash or negligent act of the accused. PW1 and 2 are none other than the father and mother of the deceased. Both of them have deposed in their chief examination that in the year 2014 while their daughter Anandi was coming home from school she had touched the electric wire which was near the road and died. Further, the alleged eyewitnesses PW3 and 4 also have only spoken with regard to the fact that deceased 11 C.C.No.4329/2016 had died because of touching the electric wire. The accused also do not dispute the death of deceased due to electrocution, however he only denies the rash or negligent act of his. Upon perusal of the evidence of PW1 to 4 there is no direct evidence to show that under what circumstance the deceased had touched electric wire attached to the junction box of the electric pole. On the basis of the evidence led by PW1 to 4 the factum of the death due to electrocution can be said to be established by the prosecution beyond reasonable doubt.
15. According to the case of the prosecution accused herein is the contractor who is responsible for maintaining the electric poles at Southern Division of Bangalore City and he has obtained the said contract from Bruhat Bangalore Mahanagara Palike (BBMP) office as per Ex.P9 tendor agreement and he had accepted to abide by Ex.P10 agreement conditions and Ex.P11 work order. Learned Sr.APP referred to 12 C.C.No.4329/2016 Ex.P10 general conditions on contract wherein at clause 15.2 there is a fixation of responsibility on the contractor for any mishaps and accident during the contract period. Hence, it is vehemently argued that the accused is responsible for the present accident. On the basis of Ex.P9 to Ex.P11 the prosecution can be said to have proved the identity of the accused as the contractor under Bruhat Bangalore Mahanagara Palike (BBMP). Hence, the ingredient No.2 is also satisfactorily proved by the prosecution.
16. Unfortunately, for the prosecution PW1 to 4 have failed to speak anything with regard to the rash or negligent act of the accused. Hence, the prosecution has to rely upon the evidence of PW5 Deputy Electric Inspector who had filed report as per Ex.P7. Upon perusal of the said report it is forthcoming that after 2 days of the alleged incident PW5 had visited the spot and examined the electric pole. In Ex.P7 report 13 C.C.No.4329/2016 it is mentioned by PW5 that due to the deterioration of insulation attached to the junction box wire there was electricity flowing to the electric pole. As such it is opined that due to the negligence of the authority maintaining the said electric pole death has been caused. Unfortunately, there is no spontaneity to Ex.P7 report submitted by PW5. The alleged incident has taken place on 17092014 at 8.45 p.m. In order to ascertain the actual defect in the electric pole it was essential for the concerned Electrical Inspector to immediately rush to the spot and examine the defects if any. From the date and time of accident up to the date and time of examination of the electric pole there could have been a third party interference which cannot be ruled out. In a criminal case it is essential for the prosecution to prove its case beyond reasonable doubt and the delay in examination by the electric pole and issuance of Ex.P7 report would certainly create one such doubt against the case set out by the prosecution. As 14 C.C.No.4329/2016 already observed there is no independent corroboration to Ex.P7 report to fix liability of negligence against the accused.PWs1 to 4 have not spoken anything with regard to the rash or negligent act of the accused. Generally, the electric poles are dangerous objects on the road. Especially when a child aged 7 years is walking on the road, her parents are required to take sufficient care and precaution with regard to the safeguard of the child. In the present case, deceased child was walking alone on the road. Under what circumstance she had touched the defective electric pole is not proved satisfactorily by the prosecution. Therefore, chances of contributory negligence on the part of the deceased as well as the lack of care taken by her parents cannot be brushed aside.
17. The remaining evidence is that of Investigating Officer PW7 who has spoken with regard to his receiving charge from CW12 and collecting Ex.P7 to P19 documents. Unfortunately, 15 C.C.No.4329/2016 the evidence of PW7 is formal in nature. In the absence of independent corroboration it is of no utility to prove the case set out by the prosecution. In the said circumstance, although ingredients No.(i) and (ii) are proved by the prosecution, major ingredient No.(iii) as to rash and negligent act of the accused is not proved beyond reasonable doubt. As such, the ingredient of Section 304A of IPC is not satisfactorily proved beyond reasonable doubt before this Court. Accordingly, point No.1 is answered in Negative.
18. Point No.2: For the reasons stated above, this Court deems fit to pass the following:
ORDER Acting under Section 255 (1) of Cr.P.C., accused is hereby acquitted of the offences punishable U/sec. 304(A) of IPC.16 C.C.No.4329/2016
Bail bonds of accused and his surety bond stands cancelled after the appeal period.
(Dictated to the stenographer directly on the computer, verified and corrected by me, then the judgment pronounced by me in the open court, on this 18th day of November 2020.) (Vignesh Kumar) VIII Addl. CMM, Bangalore.
ANNEXURE
1. Witnesses examined for the prosecution :
PW1 : Krishna PW2 : Jayalakshmi @ Jayalakshmi PW3 : Sharavana PW4 : Anand PW5 : Sangeeta PW6 : Guna PW7 : Anilkumar G.S.
2. Documents marked on behalf of the prosecution:
Ex.P1 : First information
Ex.P1(a) : Signature of PW1
Ex.P2 : Mahazar
Ex.P2(a) : Signature of PW1
Ex.P3 : Statement of PW2
Ex.P4 : Statement of PW3
Ex.P5 : Statement of PW4
Ex.P6 : P.M.Report
17 C.C.No.4329/2016
Ex.P7 : Report
Ex.P7(a) : Signature of PW5
Ex.P8 : Reply letter
Ex.P9 : Tender Agreement
Ex.P10 : Tender agreement terms & conditions
Ex.P11 : Work order
Ex.P12 : Order copy
Ex.P13 : Report
Ex.P14 : Report
Ex.P15 to 19 : 5 photos
3. Witnesses examined for the defence:
NIL
4. Documents marked on behalf of the defence:
NIL VIII Addl. C. M. M. Bangalore.18 C.C.No.4329/2016
Judgment pronounced in the open court (vide separate order) ORDER Acting under Section 255 (1) of Cr.P.C., accused is hereby acquitted of the offences punishable U/sec. 304(A) of IPC.
Bail bonds of accused and his surety bond stands cancelled after the appeal period.
VIII Addl. C. M. M. Bangalore