Karnataka High Court
Mahalingappa S/O Shanmukappa Daduti vs The State Of Karantaka on 4 December, 2020
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA
®
DHARWAD BEN CH
DATED THIS THE 04 T H DAY OF DECEMBER, 2020
VISHAL N
PATTIHAL
Digitally
signed by
VISHAL N
PATTIHAL
Date:
2020.12.15
18:24:48
+0530
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CRIMINAL REVISI ON PETITION N O.2217/2011
BETWEEN:
MAHALINGAPPA S/ O.SHANMUKA PPA DADUTI,
AGE : 42 YEARS, OCC : EMPLOYEE,
R/O.MAHALIN GPUR, TAL : MUDHOL.
... PETITIONER
(BY SRI K .L.PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA
(THROUGH MAHALINGPUR P.S .) ,REPRESENTED
BY STATE PUBLIC PROSECUT OR,D HA RWAD.
... RES PONDENT
(BY SRI RAMESH B. CHIGARI , HCGP)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH SECTI ON 401 OF
CR.P.C., AND PRAYED THAT T HE JUD GMENT OF
CONVICTION AND ORDER OF SEN TENCE PASSED BY
ADDITIONAL J .M.F.C., MUDHOL I N C.C.N O.88/2009
DATED 09.08.2010 CONVICTING T HE PETITIONER TO
UNDERGO SIMPLE IMPRISONMENT FOR 06 MONTHS A ND
PAY FINE OF RS .3,000/- FOR THE OFFENCE PUNISHABLE
UNDER SECTION 304-A OF I .P.C., IN DEFAULT T O PAY
THE FINE AMOUNT , ACCUSED S HALL UNDERGO FURTHER
S.I. FOR 06 MON THS AND THE J UDGMENT AND ORDER
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PASSED BY THE FIRST APPELLATE COURT I .E., FA ST
TRACK COURT, JAMKHANDI IN CRIMINAL APPEAL
NO.69/ 2010 DA TED 14.07.2011 AND THEREBY
CONFIRMING THE JUDGMENT OF TRIAL COURT AND
DISMISSING THE APPEAL MAY KINDLY BE SET ASIDE THE
PETITIONER/ACCUSED MAY KINDLY BE ACQUITTED IN
THE I NTEREST OF JUSTICE.
THIS PETITION COMING ON FOR DICTATING ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING :
ORDER
This petition is preferred by accused aggrieved by the Judgment of conviction and order of sentence passed by Additional J.M.F.C. Court, Mudhol in C.C. No.88/2009 dated 09.08.2010 convicting the accused for the offence punishable under Section 304-A of I.P.C. sentencing to undergo simple imprisonment for a period of 06 months and to pay a fine of Rs.3,000/- for the offence punishable under Section 304-A of I.P.C., in default of payment of fine amount, to undergo further simple imprisonment for a period of two months, which is confirmed in Criminal Appeal No.69/2010 by the Fast Track Court, Jamkhandi dated 14.07.2011.
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2. For the sake of convenience, parties shall be referred to as their ranks before the trial Court.
3. Brief facts leading to filing of this case are as under :
Sri Sanganabasappa S/o.Tammanappa Angadi, complainant filed a complaint before the Mahalingpur Police Station on 23.09.2008 at about 7.00 p.m., alleging that his grandson namely Prashant S/o.
Mahalingappa Angadi, aged about 08 years, came in contact with live electricity in the guy wire, which supported the electric pole at Chinchali plot of Mahalingpur town. It is stated that when the minor boy was playing cricket he came in contact with live electricity in the guy wire and died due to electrocution.
4. Complainant received the information through his son-P.W.4 at 5.30. p.m. in the evening itself that the incident occurred due to negligence of 4 the KPTCL officers. Hence, P.W.1 filed complaint before the P.S.I. Mahalingpur Police Station, thereafter charge sheet came to be filed against the accused for the offence punishable under Section 304-A of IPC. Accused appeared before the Court and obtained bail. He denied the accusation made against him and claimed to be tried, accordingly was tried.
5. In order to prove the guilt of accused, prosecution examined as many as 08 witnesses as per P.Ws.1 to 12 and got marked Ex.Ps.1 to 12 and 12A and material objects M.O.1 to 6 were marked in support of the case of prosecution. Thereafter, statement of accused under Section 313 of Cr.P.C. was recorded, wherein accused denied all the incriminating evidence against him. However, accused did not lead any evidence by himself. After considering the entire material evidence, both oral and documentary, trial Court came to a conclusion 5 that prosecution clearly established the negligence on the part of accused who failed in his duty to look after and maintain the electric lines which has led to the death of young boy-Prashant aged 08 years and accordingly convicted the accused for the offence punishable under Section 304-A of IPC and sentenced to undergo simple imprisonment for 06 months and pay a fine of Rs.3,000/-, in default to pay fine amount, to undergo further simple imprisonment for a period of 02 months.
6. Aggrieved by the said Judgment of conviction, accused preferred an appeal before the Fast Track Court, Jamkhandi in Criminal Appeal No.69/2010. On consideration of the entire material evidence both oral and documentary and after re- appreciating the evidence and other materials on record, the appellate court came to a conclusion that there was no discrepancy or illegality in the conviction order passed by trial Court and dismissed 6 the appeal and confirmed the Judgment of conviction passed by trial Court.
7. Aggrieved by the said Judgments of both the Courts, accused is before this Court challenging the correctness, legality and propriety of the impugned judgments.
8. Heard Sri K.L.Patil, learned counsel for petitioner and Sri.Ramesh B.Chigari learned HCGP for respondent-State.
9. It is contended by learned counsel for petitioner/accused that judgment of conviction and order of sentence passed by Addl. JMFC, Mudhol, is contrary to material evidence on record and is not based on true state of affairs. Hence, the same is erroneous in law and required to be reversed. It is further contended by learned counsel for petitioner/ accused that, for the Court to hold accused to be guilty of offence leading to death of minor boy, 7 death must be direct result of rash and negligent act on the part of accused. He further contends that in the present case admittedly accused has neither committed nor omitted to do any direct act which has resulted in death of minor boy. Therefore he vehemently contends that section 304A of IPC would not be applicable to case on hand. He further contends that evidence on record and material placed before Court do not make out a case against accused to show deliberate criminal negligence that could be attributed to accused.
10. Learned counsel further contends that to attract provisions of section 304A of IPC, mere carelessness or mere negligence is not sufficient to convict accused. There should be something more than just carelessness and negligence, in fact there must be direct nexus of accused to show deliberate criminal negligence attributing to death of minor boy. He further contends that to attract provisions 8 of section 304A of IPC, there must be deliberate act or omission on the part of accused as defined under section 36 of the Code. But for the purpose of section 304A, there must be a rash and negligent act on the part of accused which directly causes death of victim. Learned counsel further contends that in the present case on hand prosecution has not made out a case to show that there was an element of recklessness and indifference to the consequence of what accused was doing. Hence the trial Court and appellate Court have committed a serious error in convicting accused for the aforesaid offence there by leading to grave miscarriage of justice to accused.
11. Learned counsel further contends that at the time of filing FIR, in the column of accused, it was shown as officers of KPTCL who are responsible and due to non-performance of their duty resulted in the death of minor boy Prashant aged 8 years. Learned counsel further contends that without 9 there being any direct, cogent evidence as against accused, merely because accused was working as section officer of that particular area, criminal negligence could not have been attributed where there is no direct nexus for such negligence and cause of death.
12. Learned counsel for petitioner/accused further contends that prosecution has not examined Investigating Officer in the present case. By non examination of Investigating Officer, accused herein has been deprived of right to cross examine the Investigating Officer with regard to material produced by him and charge sheet laid against him. He further contends that non examination of Investigating Officer in the present case is fatal to case of prosecution. Trial Court and appellate Court have conveniently ignored such an important witness and conviction of accused is erroneous in law. He further contends that trial Court's finding with 10 regard to direct nexus of gross negligence of KPTCL department where accused was working as section officer on the date of incident, hence responsible for death of minor boy Prashant would be totally contrary to the intent of legislature with regard to proof of criminal negligence leading to death of deceased. He further contends that admittedly in the present case there is no direct, clinching evidence against accused to be responsible for death of victim. When such being the case, merely on the ground of accused being officer responsible for that particular area, convicting him is unknown to criminal jurisprudence.
13. Learned counsel has further contended that entire case of prosecution is vitiated for the reason that when prosecution alleges any negligence against officer of company i.e., KPTCL, prosecution ought to have made the company as accused. Therefore non impleading company, KPTCL as one of 11 accused is fatal to the case of prosecution. Learned counsel contends that as contemplated under section 141 of Negotiable Instruments Act, similar provision is available under the Electricity Act, 2003. Under section 149 of which contemplates, where an offence under the Act has been committed, every person at the time of offence was in charge of and responsible to the company for conduct of business of the company as well as the company shall be deemed to be guilty of having committed the offence and shall be liable to be proceeded against and punished accordingly. Therefore, non arraigning of KPTCL as party to this criminal proceedings vitiates entire proceedings of prosecution. Learned counsel for petitioner/accused further contends that even according to complainant, grandfather of unfortunate minor boy, he does not know who was responsible for cause of death and he has further stated that officials of KEB also did not know that current was running in the guy wire. It is further contended by 12 learned counsel that it is nobodies case that accused was responsible for the electricity to run in the guy wire at the time of incident.
14. Learned counsel further contends that despite all these inconsistencies in evidence both oral and documentary, and admitted position of prosecution, trial Court and the appellate Court have committed grave error causing miscarriage of justice to accused in passing the impugned order. On these submissions learned counsel for petitioner/accused seeks to allow the petition and to set aside the judgment of conviction passed by both Courts and consequently acquit accused of all charges.
15. In support of his case, learned counsel for petitioner/accused places reliance on following authorities.
i) (2015) 12 SCC 781, Sharad
Kumar Sanghi vs. Sangita Rane;
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ii) AIR 1972 SC 1150, Ambalal D.
Bhatt vs. The State of Gujarat;
iii) AIR 1965 SC 1616, Kurban
Hussein Mohamedalli Rangawalla vs. State of Maharashtra;
iv) AIR 1979 SC 1848, Syad Akbar
vs. State of Karnataka;
v) (2012) 5 SCC 661, Aneeta Hada
vs. Godfather Travels and Tours Private Limited;
vi) 2013 AIR SCW 26, Lahu Kamlakar Patil and another vs. State of Maharashtra;
vii) 2007 Crl.L.J. 486, B.E.Chandrashekar and others vs. State of Karnataka; and
viii) Crl.Rev.Pet.No.818 of 2017 dated 9.2.2018 of this Court, Ajay Kharbanda vs. Central Bureau of Investigation.
16. Per contra, learned High Court Government Pleader contends that judgment of conviction passed 14 by trial Court and affirmation by appellate Court is based on material evidence both oral and documentary and same is in accordance with law. Hence, there is no requirement of interference by this Court. Learned High Court Government Pleader further contends that it is an admitted fact with regard to death of minor boy Prashant. It is also admitted that accused was working as section officer in that particular area as on the date of incident. He contends that based on investigation, the accused officer's name was provided by KPTCL higher officers based on which accused is arraigned in this particular case as he was responsible and in charge of that particular area where the incident occurred.
17. Learned High Court Government Pleader further contends that non examination of Investigating Officer would not be fatal to the case of prosecution as other witnesses to the case have supported case of prosecution which directly 15 attributes negligence of accused in the case of death of deceased. He further contends that prosecution has established a direct nexus between accused and electric lines, guy wire which is sole responsibility of accused. He further submits that all witnesses have supported case of prosecution.
18. Learned High Court Government Pleader further contends that it is not in dispute with regard to postmortem report showing death to be due to electric shock. He further contends that accused being a section officer and a person in charge of the area for maintaining electric lines, and anything untoward caused due to flow of such electricity, trial Court and appellate Court have passed a very well reasoned order considering all material and have rightfully come to a conclusion that accused is responsible for cause of death of minor boy Prashant. Learned High Court Government Pleader further contends that there is no illegality or 16 perversity in the impugned judgments passed by both Courts and hence it is required to be sustained and this petition deserves to be rejected.
19. Having heard learned counsel for petitioner/accused and learned High Court Government Pleader for respondent State, points that arise for consideration before this Court are:
(i) Whether prosecution has proved the guilt of accused beyond all reasonable doubt?
(ii) Whether there is any illegality or perversity in impugned judgments passed by both Courts?
(iii) Whether the judgment of conviction deserves to be reversed?
20. In order to answer these points, it is necessary to have a look at section 304A of IPC, which reads as under:
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304A. C ausing death by negligen ce.-- Whoever causes the death o f any person by do ing any rash or negligent act not amounting to culpable homicide , shall be punished with impriso nme nt o f eithe r description for a te rm which may extend to two ye ars, o r with fine , or with both.
21. A careful understanding of requirement under section 304A are that there must be a direct nexus between death of a person and a rash and negligent act of accused. A remote nexus is not enough for the purpose of criminal law, there are degrees of negligence and a very high degree of negligence is required to be proved before a charge can be sustained under this section. A mere negligence is not enough to bring a case within the ambit and scope of these sections. Negligence or rashness must be such as carrying with him a criminal liability. Criminal rashness is a hazard of dangerous act with the knowledge that it is so, and that the which may cause an injury. Therefore it is 18 necessary for prosecution to establish that act of accused is rash or negligent and by such act death has occurred and that act does not amount to culpable homicide. Therefore question is, whether in the facts and circumstances of present case and material on record, act of respondent can be said to be rash or negligent.
22. Admittedly in the present case, unfortunate death of minor boy Prashant occurred on 23.9.2008 at 5.30 p.m. as the innocent boy was playing cricket and with an intent to pick up ball which had gone towards the guy wire, and while doing so, came in contact with guy wire at Chinchali plot without knowing and having any inclination that guy wire had electricity flowing in it. Therefore due to unfortunate death of minor boy Prashant, a complaint came to be filed by PW.1, his grandfather implicating officers of KPTCL to be responsible and being criminally negligent for cause of death of 19 innocent boy. Prosecution in order to prove guilt of accused examined PW.1 to PW.8. PW.1 being grandfather and PW.4 being father of minor boy Prashant, PW.5 and 6 are quoted as eye witnesses but they have not seen and neither were they present at the time of incident during the time the boy touched guy wire. PWs.5, 6 and 7 have turned hostile. PWs.2 and 3 are pancha witnesses and PW.8 is none other than doctor who has given postmortem report as per Ex.P.11.
23. Though this is a petition filed under section 397 read with section 401 of Cr.P.C., scope of revision is quite narrow compared to that of an appeal where entire material evidence would be re-appreciated and re-evaluated. Nevertheless in the present case it is vehemently argued by learned counsel for petitioner/accused that there is a serious error in appreciation of material evidence and there has been a serious irregularity and illegality 20 committed by both Courts in considering the provisions of section 304A of IPC as to the criminal liability and negligence for cause of death of minor boy Prashant. Therefore this Court will have to see whether there is any serious illegality committed by both Courts while passing impugned judgments and in doing so this Court will have to look at evidence adduced by parties only to see whether evidence adduced by parties has been rightfully appreciated by both Courts.
24. As stated earlier, it is case of the prosecution that accused has been implicated in the present case for the reason that he was in-charge as a Section Officer of that particular area where the incident occurred and that he is responsible for the electric lines and it is his duty to maintain the electric lines so that it does not lead to any untoward incident. In the present case on hand, the minor boy Prashant while playing cricket, without 21 knowledge of the electricity flowing in the guy wire has touched the wire while picking up the cricket ball, which has led to the death of minor boy. It is the case of prosecution that they have been able to establish criminal negligence of accused in not maintaining the guy wire in order and having not monitored the same to see that there is no electricity flowing in the said guy wire, criminal negligence and nexus is directly attributed to accused.
25. Admittedly, it is not the case of PW.1 or PW.4, the grand-father and father of minor boy that accused herein is directly responsible for death of the minor boy. In fact, in the evidence, they have clearly stated that they do not know who is responsible for the cause of death and it is further stated that they do not even attribute the mistake of KPTCL but they are of the opinion that it should have been checked by the responsible persons of 22 KPTCL. Therefore, there is no clear cut criminal rashness or negligence attributed directly to accused herein. In the present case, it has to be seen whether there is a direct nexus between the accused in the cause of death of minor boy Prashant.
26. Criminal negligence is gross and culpable negligence or failure to exercise that reasonable and probable care and precaution to guard against the injury either to public generally and or to individual in particular.
27. In the judgments relied by the learned counsel for accused in the case of Ambalal D.Bhatt Vs The State of Gujarat, stated supra, at paragraph No.8, it is stated thus:
"it appears to us that in a prosecution for an offence under Section 304A, 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 23 the result of a rash or negligent act or 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 12-11-62 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 interventions of another's negligence. 24
28. In the case of Kurban Hussein Mohamedalli Rangawalla, Vs. State of Maharashtra stated supra in paragraph No.4 it stated as follows:
"we may in this connection refer to Emperor Vs. Omkar Rampratap, 4 Bom LR 679, where Sir Lawarence 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 causa causans; it is not enough that it may have been the causa sine qua non. 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 25 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 proximate and efficient cause without the intervention of another's negligence. The appellant must, therefore, be acquitted of the offence under Section 304-A.
29. In the case of Syad Akbar Vs State of Karnataka, stated supra, the Hon'ble Apex Court held as follows:
"The primary reasons for non-
application of this abstract doctrine of res ipsa loquitur to criminal trials are:
Firstly, in a criminal trial, the burden 26 of proving everything essential to the establishment of the charge against the accused always rests on the prosecution, as every man is presumed to be innoncent. Until the contrary is proved, and criminality is never to be presumed subject to statutory exception. No such statutory exception has been made by requiring the drawing of a mandatory presumption of negligence against the accused where the accident "tells its own story" of negligence of somebody. Secondly, there is a marked difference as to the effect of evidence, viz. the proof in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt, but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Courts, as a reasonable man beyond all reasonable doubt.
Where negligence is an essential
27
ingredient of the offence, the
negligence to be established by the
prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews Vs. Director of Public Prosecutions, "simple lack of care such as will constitute civil liability, is not enough," for liability under the criminal law "a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied, 'reckless' most nearly covers the case".
30. In the case of Lahu Kamlakar Patil and Another Vs. State of Maharashtra, stated supra, the Hon'ble Supreme Court held thus:
"Keeping in view the aforesaid position of law, the testimony of PW.1 has to be appreciated. He has admitted his signature in the FIR but has given the excuse that it was taken on a blank paper. The same could have been clarified by the Investigating Officer, but 28 for some reasons, the Investigating Officer has not been examined by the prosecution. It is an accepted principle that non-examination of the Investigating Officer is not fatal to the prosecution case". Further it is stated "the present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the pancha witness had turned hostile and some of the evidence adduced in the Court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in Arvind Singh Vs. State of Bihar, Rattanlal Vs. State of Jammu and Kashmir and Ravishwar Manjhi and Others Vs. State of Jharkhand, has explained certain circumstances where the examination of Investigating Officer becomes vital. We are disposed to think that the present case is one where the Investigating Officer should have been examined and his non-examination creates a lacuna in the case of the prosecution."29
31. In the case of B.E.Chandrashekar and Others Vs. State of Karnataka, stated supra in paragraph No.11 it is stated as under:
"It is to be noticed that the rash and negligent act referred to Section 304-A means an act which is an immediate cause of death and not an act which can, at best be said to be remote cause of death. No doubt, the act of negligence would be to the driving of any vehicle in a rash and negligent manner as to endanger human life or likely to cause harm or injury to hurt a person where no harm has actually been caused. The requirement is that the death of any person must have been caused by the accused by any rash or negligent act, in other words there must be proof that the rash or negligent act of the accused was the proximate cause of death. There must be a direct nexus between the death of a person and the rash and negligent act of the accused. It is further stated that in the case on hand, the prosecution has failed to garner any material to show that there is direct nexus between the death of young boy and 30 alleged act of negligence of the petitioners. Ultimately, one will have to see whether the accused were really responsible for the death of young boy. It is unfortunate one young life is extinguished and it is caused because of boy coming in contact with the high tension wire while retrieving a ball which has fallen on the roof. In the absence of any evidence to drive home that the negligence can be attributed to the petitioners, I am of the view that the proceedings are required to be terminated."
32. Learned counsel has also relied in the case of Sri Ajay Kharbanda Vs Central Bureau of Investigation, at paragraph No.5 held thus:
"Therefore all the above said allegations made against accused No.16 points out he has done all those acts for and on behalf of M/s. Greentex Mining Industries Limited which is a registered Company. Therefore, it is crystal clear that without making the company as an accused, the Managing Director has been made as a party and it is further held in paragraph 31 No.7, "it is crystal clear that, without making the company as an accused, accused No.16 (Managing Director) individually cannot be prosecuted. Under the above said circumstances, accused No.16 is necessarily to be discharged."
33. In view of the above, the judgments of Hon'ble Supreme Court and the Co-ordinate bench of this Court, it is crystal clear that to attract the provisions of Section 304-A, there has to be a direct nexus of gross criminal negligence or culpable negligence or failure to exercise that reasonable and proper care and that such act is so directly attributable to the rashness and negligence of accused and such act of accused is the proximate cause of death. In the present case on hand, there is no allegation that the death of the minor boy Prashant was the direct result of any act or omission on the part of accused. Whereas, on the contrary the accused is sought to be prosecuted on the basis of allegation that he is one of the officers of KPTCL 32 working as Section Officer of that particular area where the incident has occurred and also the prosecution alleges that accused herein is charged for the offences on the basis of a letter written by the Assistant Executive Engineer, of KPTCL on the request of the Investigating Officer, which not found place in the exhibits and neither has been got marked by the Investigating Officer and even Investigating Officer has not been examined to produce the said relevant document. Even if the Investigating Officer had produced such a document and adduced evidence, it would not directly attribute rashness and negligence on the part of accused to show that he was directly responsible for the cause of death of a minor boy. It is only the on the assumption that the accused happens to be the Section Officer, that he has been named as an accused in fact there is no direct averment by the prosecution that the death of a minor boy is due to 33 the direct result of the rash or negligent act of the accused.
34. In the present case on hand, admittedly there is no proof that the rashness or negligent act of accused is the proximate cause of death of the minor boy Prashant and also there is no direct evidence produced by the prosecution to drive home that the negligence can be attributed to the accused. It can be noticed at the best that the evidence of all witnesses could only lead to a conclusion to show that the minor boy Prashant has no doubt died due to coming in contact with the electricity flowing in the guy wire.
35. It is however very unfortunate and sad that the life of a young boy aged 8 years has been extinguished because of him coming in contact with electricity flowing on the guy wire but at the same time the cause of death cannot be directly attributed to the gross criminal negligence and culpable 34 negligent or failure by the accused. As stated earlier, mere negligence is not enough to prove the case within the ambit and scope of Section 304-A. The negligence or rashness must be to such a degree that it should carry with it criminal liability and there must be a direct nexus between the death of a person and rash and negligent act of the accused. A remote nexus is not enough a high degree of negligence is required to be proved before a charge can be sustained under Section 304-A. Therefore, the prosecution has not been able to establish the guilt of accused beyond all reasonable doubt. Hence, I answer point No.1 in the negative.
36. In view of the above findings and judgments by the Hon'ble Supreme Court and this Court referred to above, I find that the trial Court and the Appellate Court have committed serious illegality in not appreciating the fundamental requirement under Section 304-A of IPC, there being 35 no element of criminal rashness and criminal liability, both the Courts have misdirected itself in coming to the conclusion that mere negligence is sufficient to convict the accused for the offence punishable under Section 304-A of IPC, whereas the prosecution to prove guilt of accused under Section 304-A, it is necessary to prove that criminal rashness is hazardous, a dangerous act with knowledge that it is so and that it may cause an injury and it should be coupled with criminal liability with a direct nexus between the death of a person and rash and negligent act of the accused. Hence, I answer point No.2 in the affirmative.
37. The argument pertaining to the aspect that company being not made a party accused in the present proceedings is fatal to the case of the prosecution, is not impressive and the same is not accepted. The proceedings initiated herein is not under the Electricity Act, 2003 and hence the 36 provision of Section 149 of Electricity Act would not be applicable to the facts of this case. Hence, judgment relied by the learned counsel for petitioner
- accused is not applicable to the present facts of the case.
38. Judgment of conviction passed by both the Courts deserves to be reversed. Hence, I answer Point No.3 in the affirmative.
39. Accordingly, for the aforesaid reasons, I pass the following:
ORDER Petition is allowed.
The judgment of conviction and order of sentence passed by the Addl. JMFC, Mudhol at Mudhol in C.C.No.88/2009 dated 09.08.2010 convicting the accused to undergo simple imprisonment for six months and pay a fine of Rs.3,000/- for the offence punishable under Section 37 304-A of IPC, in default to pay fine amount the accused shall undergo further simple imprisonment for two months, which is confirmed by the Fast Track Court, Jamkhandi in Criminal Appeal No.69/2010 dated 14.07.2011, is hereby set aside.
The petitioner-accused is acquitted of all charges.
The trial Court is directed to refund the fine amount, if any deposited to petitioner-accused.
Sd/-
JUDGE Ckk/mrk/msr VK