Jiwanlal v. Devi Luhar — 1969 DIGILAW 121 (MP)

JUDGMENT 1. This is an appeal by the complainant with special leave of this Court granted under section 417(3), Criminal Procedure Code against the acquittal of the respondent of an offence under section 304-A, Indian Penal Code, passed by the magistrate, 1st Class, Sugar, in Criminal Case No.880 of 1965, dated 24-2-66 2. The appellant, father of the deceased Prakashchand alias Bachhulal, a boy aged about 14 years, had filed the complaint for an alleged offence under section 304-A, Indian Penal Code alleging that on 31-5-1964, the deceased had gone to the flour-mill owned by Krishnakumar and Dr. W. S. Quereshi. The respondent Devi Luhar is their employee as a driver of the flour-mill. Prakashchand had gone as a customer for the purpose of getting wheat ground. The flour-mill had stopped running and the respondent wanted to re-start it. Therefore, he asked the deceased Prakashchand to fix the belt on the wheel while the respondent wou1d start the engine by revolving the handle. In that process, the clothes of Prakashchand were caught in the belt and he himself was dragged. He received severe injuries and was removed to the hospital, where he died. 3. The respondent's defence was that the deceased had voluntarily gone near the engine and it was by accident that he was caught in the belt. The respondent denied that he had ever requested the deceased to put the belt on the wheel while he would start the engine. 4. Dr. A. R. Singh (P.W.7) had examined the deceased Prakashchand just before his death and as per the report, Ex. p/1, had found that the patient was in gasping stage having compound fracture of right arm completely crushed and fracture of right thigh and there was a close injury of chest and lacerated wound of right side of the scalp. He also opined that the said injuries could have been caused by the accident said to have taken place on account of the patient being caught in the belt of the flour-mill. This doctor reported that the patient died within one minute of his arrival in the hospital. 5. The learned Judge of the trial Court thought that there were no eye witnesses to the occurrence. Evidently, Jiwanlal (P.W.1), father of the deceased, was not an eye-witness at all, as was clear from the testimony of the said witness. This doctor reported that the patient died within one minute of his arrival in the hospital. 5. The learned Judge of the trial Court thought that there were no eye witnesses to the occurrence. Evidently, Jiwanlal (P.W.1), father of the deceased, was not an eye-witness at all, as was clear from the testimony of the said witness. As regards other persons, the trial Judge disbelieved them one and all because of the report, Ex. D/I, said to have been made by one, Khubchand at the police station regarding the accident. It was on account of that report that the trial Judge felt doubtful about the other prosecution wit• nesses being eye-witnesses of the occurrence. We may observe that the approach of the trial Judge was absolutely erroneous. Khubchand, the person who was said to have lodged a report, was not at all examined by the defence; but the said report was sought to be proved through the testimony of the Sub-Inspector H. P. Singh (D.W. 4). Thus, this Khubchand was never offered for cross-examination. Evidently, all the prosecution witnesses could not be disbelieved outright merely on the strength of the report Ex. D/I, made by one Khubchand, who never entered the witness-box. The report could as well have been a coloured version sought to be given by the respondent. 6. In our opinion, the correct approach would have been to examine whether the eye-witnesses put forth by the prosecution were in fact present at the time of the occurrence or they had been trumped up witnesses. If the trial Judge found that they were trumped up witnesses, then a wholesale rejection of their testimony might be justified. But if assurance is lent of the prosecution assertion that the witnesses were present, there is no reason to discard the entire prosecution evidence on the basis of the police report, Ex.D-1. But the testimony of the prosecution witnesses had to be examined on its own merits. 7. The prosecution examined Jiwanlal (P.W.1), the father of the deceased, who even on his own showing, was not an eye-witness. Sunderlal (P.W.2) was actually an eye-witness who was present near the flour-mill of the respondent at the relevant time. But the testimony of the prosecution witnesses had to be examined on its own merits. 7. The prosecution examined Jiwanlal (P.W.1), the father of the deceased, who even on his own showing, was not an eye-witness. Sunderlal (P.W.2) was actually an eye-witness who was present near the flour-mill of the respondent at the relevant time. This witness positively asserted that as the machine had stopped working, the respondent wanted to re-start the engine and he requested the deceased Prakashchand to fix the belt on the wheel, while the respondent would start the engine by revolving the engine. Thus, this witness asserts that the respondent requested the deceased to do the risky work of putting the belt on the wheel, while the engine would be started. It is pertinent to note that this witness was not cross examined to show that he was not present at the spot. Similar was the version given by Sukhram (P.W.3), another eye-witness, and by Shyam (P.W.6). There can be no doubt that these persons were present at the flour-mill of the respondent when the accident took place. Evidently, Gulabchand, a brother of the deceased and Kunjilal (P.W.5), grandfather of the decesed were not present at the time of the accident. But we feel that the learned Judge of the trial Court was in error in discarding outright the testimony of Sunderlal (P.W.2), Sukhram (P.W.3) and Shyam (P.W.6) on the sole ground that their names were not mentioned in the report, Ex. D/I, lodged by one, Khubchand with the police. In view of the fact that these witnesses were not even cross-examined with reference to their presence at the spot at the time of the accident, we feel that their testimony could not be discarded on that ground and we are convinced that these persons were present and they saw the accident taking place. Therefore, the testimony of these witnesses also establishes the fact that the respondent requested the deceased Prakashcand, a boy aged about 14 years, to do the dangerous work of fixing the belt on the wheel, while the respondent would start the engine. 8. As against this, the respondent led defence evidence to show that the respondent had not requested the deceased Prakashchand to do that work but the deceased anyhow walked into the separate arena meant for the engine and the flour-grinding machine, probably without the permission of the driver. 8. As against this, the respondent led defence evidence to show that the respondent had not requested the deceased Prakashchand to do that work but the deceased anyhow walked into the separate arena meant for the engine and the flour-grinding machine, probably without the permission of the driver. We may observe that the defence evidence itself, namely, the evidence of Shankar (D.W.1), Parmu (P.W.2), Kishori (D.W.3) and Ishwariprasad (D.W.5) would clearly indicate that the respondent tried to propound an absurd explanation that the deceased just walked into that separated arena where the machine is fitted and, therefore, the met with an accident. On the other hand, the prosecution witnesses, particularly Sunderlal (P.W.2), Sukhram (P.W.3) and Shyam (P.W.6) have positively asserted that the respondent requested the deceased to help him in re-starting the engine. The testimony of the defence witnesses appears to be artificial and we may observe that the deceased was not a child who would just walk into the separated arena out of curiosity. He was a young boy who understood the dangers of the machine and he would not have entered the arena, but for it specifie request made by the respondent to help him in restarting the engine. This, in our opinion, is the one and the only inevitable conclusion to be drawn from the material on record and, in our opinion, the approach of the trial Judge was altogether erroneous as he illegally rejected the prosecution evidence wholly on the basis of the report, Ex.D/1, lodged by Khubchand with the police. 9. It is to be noted that the deceased bad gone to the respondent as a customer. He was an absolute layman so far as working of the machine was concerned. Had he been an employee at the flour-mill, the position might have been different. But the respondent had no business whatsoever to ask a layman and particularly a young boy aged about 14 years to do the risky work of fixing the belt on the wheel at the time of starting of the engine. Such work by its very nature is risky and the question would be whether the action of the respondent in entrusting that work to the deceased constituted an offence under Section 304-A, Indian Penal Code. 10. It may be pertinent to note the ingredients of Section 304.A, Indian Penal Code. Such work by its very nature is risky and the question would be whether the action of the respondent in entrusting that work to the deceased constituted an offence under Section 304-A, Indian Penal Code. 10. It may be pertinent to note the ingredients of Section 304.A, Indian Penal Code. The said Section is as follows : "Section 304-A.-Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." Therefore, what the section lays down is that a person should cause the death of another person by doing any rash or negligent act not amounting to culpable homicide. The death should be the direct result of rash or negligent act and such act should not amount to culpable homicide. If these ingredients are present, an offence under the section can undoubtedly be said to have been made out. 11. It may be that there is also another section in the Indian Penal Code, namely, section 287, Indian Penal Code with reference to negligent conduct in respect of machinery. For the sake of convenience, we may reproduce that section, which is as follows: "Section 287.-Whoever, does, with any machinery, any act so rashly or negligently as to endanger human life or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any machinery in his possession or under his care as is sufficent to guard against any probable danger to human life from such machinery, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." 12. This section also requires an act rash or negligent so as to endanger human life with respect to some machinery. It is a known fact that some machineries are dangerous and particularly, If laymen are permitted to handle them. It is for that reason that various enactments have been passed by the legislature providing for safety measures in respect of such machinery, the working of which is always complicated and which can only be entrusted to trained persons and not to any layman. It is for that reason that various enactments have been passed by the legislature providing for safety measures in respect of such machinery, the working of which is always complicated and which can only be entrusted to trained persons and not to any layman. Therefore, if a person incharge of such machinery were to entrust the work or part of the work to a layman and particularly a child can it be said that his action in that behalf would constitute an offence either under section 287 or section 304-A, Indian Penal Code. 13. In this connection we might advert to the case of Mohri Ram Vs. Emperor AIR 1930 Lah. 453 decided by Jailal J. In that case one Fatehchand had taken a lease of flour-mill with the petitioner-accused Mohri Ram as his partner and Manager. One Munshiram was employed to act as a mistri. A shaft with a leather belting was installed in the flour-mill for water supply, but part of the belting protruded outside the factory building. One of the girls was killed and the other was crippled. The offence alleged against the accused was under Section 304.A, Indian Penal Code. However, in the particular circumstances of the case, Tailal J., held that the offence fell within the ambit of section 287, Indian Penal Code. In that view, the conviction was altered and the sentence also was reduced. The learned Judge held that Fatehchand not having taken any active part either in erecting the shaft and the belting or in the management of the mill, could not be held liable even under section 287, Indian Penal Code. However, with regard to the accused Mohriram and Munshiram, they were incharge of the flour-mill, one in the capacity of a Manager and the other in the capacity of a mistri and they were directly responsible for the condition of the shaft and the belting. As regards section 304-A, Indian Penal Code, the learned Judge opined that the section would be applicable to such acts of the accused as are rash and negligent and are directly the cause of death of another person. In that particular case the offence was said to fall within the ambit of section 287, Indian Penal Code as the death had not been caused directly by any rash and negligent act of the accused. In that particular case the offence was said to fall within the ambit of section 287, Indian Penal Code as the death had not been caused directly by any rash and negligent act of the accused. We may observe that if death be the direct result of a rash and negligent act, the offence will undoubtedly fall within the ambit of section 304-A, Indian Penal Code. 14. Their Lordships of the Supreme Court in Kurban Hussain Rangawalla Vs. State of Maharafhlra AIR 1985 SC 1616 made the following observations:- "We may in this connection refer to Emperor Vs. Omkar Rampratap 4 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 causa causans; it is not enough that it may have been the causa sine qua non.' The view has been generaliy 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 generaliy 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 proximate and efficient cause without the intervention of another's negligence. The appellant must, therefore, be acquitted of the offence under section 304-A, Indian Penal Code..." 15. As in that case their Lordships found that the death was not the direct result of a rash and negligent act of the accused, the conviction under section 304-A, Indian Penal Code could not be maintained. The appellant must, therefore, be acquitted of the offence under section 304-A, Indian Penal Code..." 15. As in that case their Lordships found that the death was not the direct result of a rash and negligent act of the accused, the conviction under section 304-A, Indian Penal Code could not be maintained. In that view of the matter the conviction of the accused under section 285, Indian Penal Code was, however, upheld. We may observe that the necessary test laid down by their Lordships of the Supreme Court is that in case the death is the direct result of a rash and negligent act of an accused, in that event only he can be found guilty under section 304-A, Indian Penal Code; otherwise he may be guilty of any other offence which may be provided by the Indian Penal Code or by any special enactment. Sometimes it may be that an action may fall within the ambit of two provisions of the Indian Penal Code or the Indian Penal Code and some special enactment. It will be a case to be decided on the facts and circumstances of each case as to whether a particular action would be covered by what particular provision of law. 16. In such cases the question of contributory negligence would not at all arise and as laid down by Niyogi, J. in Shekh Jumman Vs. King Emperor 31 MPLC 164=ILR 1944 Nag. 732, the question of contributory negligence would not be relevant where the question of criminal offence is involved. Contributory negligence cannot absolve a person of a criminal liability, although in Civil Cases it may reduce the liability of the defendant for damages. In England 'Law Reforms (Contributory Negligence) Act, 1945, was specifically framed in respect of• cases involving question of contributory negligence. However, in our country the matter not being statutory, but one of equity, justice and good con science, the .principle of contributory negligence might be invoked, as laid down by a Division Bench of this Court in Shankar Rao More Vs. Union of India 1959 JLJ 112 =JLR 1958 MP 710= AIR 1959 M.P 128 . But so far as criminal liability is concerned, the principle of contributory negligence cannot at all be made applicable. 17. We may further advert to the pronouncement of their Lordships of Supreme Court In Cherubin Gregary Vs. Union of India 1959 JLJ 112 =JLR 1958 MP 710= AIR 1959 M.P 128 . But so far as criminal liability is concerned, the principle of contributory negligence cannot at all be made applicable. 17. We may further advert to the pronouncement of their Lordships of Supreme Court In Cherubin Gregary Vs. State of Bihar AIR 1964 SC 205 , wherein the appellant Cherubin Gregory was charged with an offence under section 304-A, Indian Penal Code for causing the death of one Mst. Madilen, who came in contact with an electrically charged naked copper wire which the accused had fixed up at the back of his house with a view to prevent the entry of intruders into his latrine. The deceased Mst. Madilen was an inmate of a house nearby. The wall of the latrine of the house of the deceased had fallen down so that the latrine of her house was exposed to public view. Therefore, the deceased started using the latrine of the house of the accused. The accused, however, resented that act and in order to prevent the entry of trespassers he had fixed up a live naked copper electric wire of high voltage. Their Lordships laid down that even the trespasser would not be an outlaw, i. e., caput lupiJtem. The mere fact that the person entering a land would be a trespasser would not entitle the owner or the occupier to inflict on him personal injury by direct violence and the same principle would govern the inflction of injury by indirectly doing something on the land, the effect of which he must know, would be likely to cause serious injuries to the trespasser. In that view of the matter their Lordships upheld the conviction of Cherubin Gregory under section 304-A. 18. We may observe that the same principle will be applicable to the instant case, which we (eel stands on a much better footing. The deceased Prakashchand was not a trespasser, but was a customer who had legitimately gone to the flour-mill where the respondent worked as a driver. He was waiting for his turn as the flour-mill had stopped working, the respondent wanted to re-start it and, therefore, he requisitioned the services of the deceased for the purpose of restarting the flour mill. The deceased Prakashchand was not a trespasser, but was a customer who had legitimately gone to the flour-mill where the respondent worked as a driver. He was waiting for his turn as the flour-mill had stopped working, the respondent wanted to re-start it and, therefore, he requisitioned the services of the deceased for the purpose of restarting the flour mill. As such, the death of Prakashchand was the direct result of the respondent's action in requisitioning his services for the purpose of restarting the flour-mill. We reject the contention of the learned counsel for the respondent that the death should be held to be an indirect result of the respondent's 2ction. The respondent well knew the risk involved in the process of fixing the best on the wheel at the time of starting the engine. Moreover, that work was entrusted to a layman not conversant with the working of the machine, especially to a young boy aged about 14 years. This action of the respondent will undoubtedly constitute an offence under section 304-A, Indian Penal Code and we have no doubt that the learned Judge of the trial Court was in error in acquitting the respondent of that offence by discarding the entire prosecution evidence on altogether wrong premises and by failing to apply the law correctly to the facts of the present case. 19. As a result of the discussion aforesaid, this appeal succeeds and is accordingly allowed. The respondent's acquittal is set aside and instead he is found guilty under section 304-A, Indian Penal Code for which we think that a sentence of rigorous imprisonment for six months will meet the ends of justice.