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2009 DIGILAW 161 (CHH)

TIKURAM v. STATE OF C. G.

2009-05-15

D.R.DESHMUKH

body2009
ORDER 1. This criminal revision is directed against the judgment dated 26-3-2009 delivered in Criminal Appeal No.42/2008 by the Additional Sessions Judge, Gariyaband, District Raipur, whereby conviction of the petitioner under Section 304A of the I.P.C. and the rigorous imprisonment for 6 months and fine of Rs.2,000/- awarded by the Judicial Magistrate First Class, Rajim in Criminal Case No.49/2007 by judgment dated 1-10-2008 was affirmed. 2. Briefly stated the prosecution story is that the petitioner had taken an illegal connection from the low tension line of the Chhattisgarh State Electricity Board (henceforth 'CSEB ') by connecting a 250 meter long, 6 square millimeter PV C wire for running a motor pump in his field for irrigation purposes. On 26-8-2005, Salikram carrying a haystack on his head tried to go underneath the wire and in that process died due to electrocution. Prosecution under Section 304A of the I.P.C. was launched. The petitioner abjured the guilt. The prosecution examined as many as 12 witnesses. No evidence was adduced in defence. The trial Judge convicted the petitioner under Section 304A of the I.P.C. and sentenced him to undergo rigorous imprisonment for 6 months and also to a fine of Rs.2,000/-. Affirming the conviction and sentence awarded to the petitioner, Criminal Appeal No.42/2008 was dismissed. 3. Shri Yogesh Pandey, learned counsel for the petitioner argued that the prosecution has failed to prove culpable negligence of the petitioner beyond reasonable doubt. There is no material on record to show that it was the petitioner who had taken the illegal connection. It was also argued that the material facts forming the basis for convicting the petitioner were not put to the petitioner in the examination under Section 313 of the Cr.P.C. On these premises, it was urged that conviction of the petitioner under Section 304A of the I.P.C. was perverse and liable to be set aside. Reliance was placed on Ajay Singh Vs. State of Maharashtra1. 4. On the other hand, Shri P.R.Patankar, learned Panel Lawyer for the State/non-applicant argued in support of the impugned judgment. 5. Having considered the rival submissions, I have perused the record. Reliance was placed on Ajay Singh Vs. State of Maharashtra1. 4. On the other hand, Shri P.R.Patankar, learned Panel Lawyer for the State/non-applicant argued in support of the impugned judgment. 5. Having considered the rival submissions, I have perused the record. For the reasons to follow I am of the considered opinion that conviction of the petitioner under Section 304A of the I.P.C. is perverse being based on misreading of evidence and also on the ground that material facts appearing in evidence and forming the basis for conviction of the petitioner were not put to him in a fair and simple manner under Section 313 of the Cr.P.C. 6. The trial Court record shows, at page 23, that a memo (Ex.P-13) was sent by the S.H.O. Police Station Rajim to the Junior Engineer, CSEB, Rajim on 27-8-2005 stating that the illegal connection from the low tension line for running a motor pump was taken by Sonsai, i.e., the father of the petitioner. There is no evidence to show that it was the petitioner who had taken the illegal connection by attaching a PVC wire to the low tension line. It is also pertinent to note that the seizure memo Ex.P-2 and Panchnama Ex.P-3 prepared by Junior Engineer A.K.Nigam P.W.-l0 do not bear the signature of the petitioner. A.K.Nigam P.W.10 had admitted in cross-examination that the petitioner was not present during enquiry at the place of occurrence. Anil Kumar Sahu P.W.-1, Loknath P.W.-2, Chhavilal P.W.-3, Govindram P.W.-4, Thakur Ram Sahu P.W.-5, Bodhan Sahu P.W. -8 and even Assistant Lineman Leelaram Sahu P.W. -9 did not depose against the petitioner. 7. The learned trial Judge as also the learned lower appellate Court have placed reliance on the confession of the petitioner before Arvind Kumar Nigam P.W.-10 at the time of enquiry that he had taken the unauthorized electric connection from the pole. However, in view of his admission in cross-examination that at the time of enquiry the petitioner was not present, the testimony of Arvind Kumar Nigam P.W.-10 is re!1dered wholly unworthy of any credit. This is also substantiated by the fact that the Panchnama Ex.P-3 and the seizure memo Ex.P-2 do not bear the signature of the petitioner. Lineman K.R.Sahu P.W.-6 deposed that the Panchnama and the seizure memo were prepared at the residence of the petitioner. This is also substantiated by the fact that the Panchnama Ex.P-3 and the seizure memo Ex.P-2 do not bear the signature of the petitioner. Lineman K.R.Sahu P.W.-6 deposed that the Panchnama and the seizure memo were prepared at the residence of the petitioner. However, the absence of the signatures of the petitioner on these documents belies his testimony. This witness did not see the petitioner taking an unauthorized electric connection from the low tension line which is also borne out from his admission that he had reached the place of occurrence only after learning about the incident. He also admitted that he did not know who owned the field in which Salikram had died. Therefore, his testimony that it was the petitioner who had taken the unauthorized electric connection is wholly unworthy of any credit. The fact that Assistant Lineman Leelaram Sahu P.W.-9 who is a witness to the Panchnama Ex.P-3 and the seizure memo Ex.P-2 did not support the prosecution story also renders the testimony of A.K.Nigam P.W.-10 and Lineman K.R.Sahu P.W.-6 doubtful. In view of the memorandum Ex.P-13 sent by the S.H.O., Police Station Rajim to the Junior Engineer, CSEB, Rajim the possibility that the illegal electric connection had been taken by Sonsai and not the petitioner cannot be ruled out. 8. The provision contained in Section 313 of the Cr.P.C. enables the accused to explain any circumstance appearing in evidence against him. In Ajay Singh Vs. State of Maharashtra l (supra), the Supreme Court observed as under: "10. The purpose of Section 313 of the Code is set out in its opening words - 'for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him.' In Hate Singh, Bhagat Singh Vs. State of Madhya Pradesh (AIR 1953 SC 468) it has been laid down by Bose, J. that the statements of accused persons recorded under Section 313 of the Code' are among the most important matters to be considered at the trial'. It was pointed out that the statements of the accused recorded by the committing magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box and that they have to be received in evidence and treated as evidence and be duly considered at the trial. This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be considered in the same way as if Section 315 is not there. 11. The object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. 12. The word • generally' in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. 13. The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed. It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questionings must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand." 9. One of the grounds for convicting the petitioner was the confession made by the petitioner regarding taking the illegal electric connection. In his examination, the following question was put to the petitioner: A perusal of the above question would to go to show that in this question a long series of facts contained in seizure memo Ex.P-2, Panchnama Ex.P-3, enquiry report Ex.P-6 and the confession made by the petitioner were put to the petitioner. Such a course is not permissible. It cannot be said that the questions put by the learned trial Judge to the petitioner were in such a form which would enable even an ignorant or illiterate person to appreciate and understand. Fairness would require that each material circumstance should have been put to the petitioner simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. 10. Above being the position, the inevitable conclusion is that the prosecution has failed to establish culpable negligence of the petitioner beyond reasonable doubt. Conviction of the petitioner under Section 304A of the I.P.C. is, therefore, liable to be set aside. 11. In the result, the criminal revision is allowed. Conviction of the petitioner under Section 304A of the I.P.C. is set aside. The petitioner is acquitted of the charge under Section 304A of the I.P.C. after giving him the benefit of doubt. The petitioner be set at liberty forthwith, if not required in any other case. Fine, if paid, shall be refunded to the petitioner. Revision Allowed.