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2013 DIGILAW 188 (KER)

Somanathan v. State of Kerala

2013-03-01

B.KEMAL PASHA

body2013
Judgment : 1. In cases where live electric wire snaps and falls on the public pathway resulting in electrocution of human beings walking through the pathway, can the employees of the licensee in control of the power supply management who are directly in charge of such electric line, shirk from criminal liability by resorting to a plea that such death is not ‘causa causans’ and is only ‘causa sine qua non’ to the negligence attributed to them, in defending a charge under section 304A IPC? 2. The petitioners/accused, who have unsuccessfully challenged their conviction and sentence under Sections 336 and 304A r/w S.34 IPC before the Additional Sessions Court, North Paravur through Cri. Appeal No.216 of 2002, have come up in revision. 3. Two small school going children, deceased Lijo aged 8 and his sister Liji, aged 11 were trapped by a live electric wire lying on the pathway, while they were on their way to school, at 9.10 a.m on 31.7.1995. The children, without knowing the impending danger, came into contact with the live wire. Deceased Lijo sustained fatal burns and Liji sustained severe burn injuries. The boy died on 3.8.1995 at 6.30 p.m. while undergoing treatment. Vadakkumpuram police registered Crime No.213 of 1995 through Ext.P2 F.I.R. on the basis of Ext.P2 First Information Statement furnished by PW2 who was an eye witness to the incident. The investigation revealed that there was a coconut tree standing through the space in between the two aluminium electric wires through which electricity was being supplied, and due to the constant rubbing of the trunk of the coconut tree with the aluminium wire, it snapped and fell on the pathway. The first petitioner was the Overseer and the second petitioner was the Assistant Lineman of the Electrical Major Section, Vadakkumpuram on whose negligence the incident had allegedly occurred. 4. According to the learned counsel for the petitioners, the incident had occurred only on ‘act of God’ and not due to any negligence from the part of the petitioners. It is also argued that the first petitioner is presently 73 years and the second petitioner is 68 years old, and are suffering with serious aliments. 5. The fact that the deceased died due to electrocution and PW8 sustained serious burn injuries on getting electric shock from an electric live wire which was lying on the pathway are not in dispute. 5. The fact that the deceased died due to electrocution and PW8 sustained serious burn injuries on getting electric shock from an electric live wire which was lying on the pathway are not in dispute. The question to be looked into is whether there was any negligence from the part of the petitioners, which had resulted in the tragic incident. 6. PW2 was an eye witness to the incident. According to him, on seeing the children getting electric shock he rushed to the spot, and his elder brother who also came over there removed the electric live wire with a wooden stick. The children were taken to the hospital, and the deceased succumbed to the burns. He furnished Ext.P2 First Information Statement before the police. According to him, there was a coconut tree which was standing in between the electric lines. Due to the constant rubbing of the trunk of the coconut tree, the aluminium wire snapped and fell on the road. Immediately after the incident, the workers of the Electricity Board came and cut and removed the coconut tree. PW3, another eye witness also has given the very same versions and corroborated the evidence of PW1. PW6, who was another eye witness to the incident has also supported the prosecution case and corroborated the versions of PWs. 2 and 3 in all material particulars. Their consistent versions clearly reveal that the trunk of the coconut tree was passing through the space in between the two aluminium electric wires. The contents of the scene mahazar also corroborate their said versions regarding the coconut tree. PW8, Liji who was the injured has also proved the incident. 7. It was PW10, the Assistant Engineer of the K.S.E.B., who furnished Ext.P7 report to the Circle Inspector of Police, Vadakkumpuram. PW11 was the Deputy Electrical Inspector who enquired the matter. He proved Ext.P8 office file. Ext.P9 is the report furnished by him before the electrical inspector. He recorded Ext.P12 statement of the first petitioner, and Ext.P13 statement of the second petitioner. It has come out from his evidence that the incident was as a result of the sub-standard procedure adopted by the K.S.E.B. for the erection and maintenance of electricity supply line. As Rule 91 protection was not provided, the electricity supply would not automatically cut off even on the contact of the live line with the ground. 8. It has come out from his evidence that the incident was as a result of the sub-standard procedure adopted by the K.S.E.B. for the erection and maintenance of electricity supply line. As Rule 91 protection was not provided, the electricity supply would not automatically cut off even on the contact of the live line with the ground. 8. From the evidence of PW12, the Assistant Executive Engineer, Major Section, Chendamangalam, it has clearly come out that the place of incident was within his jurisdiction, and that the first petitioner was the overseer and the 2nd petitioner was the line assistant of the area covering the scene of occurrence during the period of incident. PW15, Assistant Engineer, electrical Major Section, Chendamangalam has given evidence to the effect that the petitioners were in charge of the power line at the area in question. From the evidence of PW16, Assistant Executive Engineer, Chendamangalam Electrical Major Section, also it has come out that the petitioners were in charge of the line in question. Whatever it is, at present there is no serious dispute that the petitioners were not in charge of the said area in question at the time of the incident. 9. According to the learned counsel for the petitioners, it was not as a result of any direct negligence of the petitioners that the aluminium power line snapped and fell on the road. In short, the argument advanced by the learned counsel for the petitioners, is that any negligence from the part of the petitioners was not the direct or proximate cause of the death of the boy or the injuries sustained to PW8. The learned counsel for the petitioners relies on the decision in Kurban Hussein Mohammad Ali Rengawala v. State of Maharastra (1965 SC 1610) in support of the contention. According to the learned counsel for the petitioners, the said decision was followed by this court in Jose v. State of Kerala ( 1993 (2) KLT 388 ). The facts of this case can easily be distinguished from the facts of the cases in the decisions noted supra. 10. This is not a case wherein the coconut tree was standing near the electric line or adjacent to it; whereas, the trunk of the tree was really sandwiched by the two aluminium electric wires. The facts of this case can easily be distinguished from the facts of the cases in the decisions noted supra. 10. This is not a case wherein the coconut tree was standing near the electric line or adjacent to it; whereas, the trunk of the tree was really sandwiched by the two aluminium electric wires. The constant and frequent robbing of the trunk of the coconut tree on the aluminium wire, has caused the breakage of the power line, which led to the untoward incident. The snap of the electric wire in this case had not occurred on account of any unforeseen event; whereas it was as a result of non-exercise of mere commonsense by the petitioners, which can clearly be termed as negligence. It cannot be said that the incident, which had resulted in the death of the deceased and injuries to PW8, was too remote from the negligence on the part of the petitioners. Immediately after the incident, the employees of the K.S.E.B had reached the spot, showed the wisdom to cut and remove the coconut tree for facilitating the restoration of the power line. Had that been done earlier, the poor child could have lived in this world. The incident in this case has to be treated as a direct and proximate cause of the negligence from the part of the petitioners, as they were duty bound to see that the trunk of the tree should not stand sandwiched by the electric wires. Therefore, the negligence from the part of the petitioners can be regarded as the causa causans and not and causa sine qua non to the death of the deceased and injuries to PW8. 11. There is absolutely no illegality, irregularity, or impropriety in the concurrent findings on facts entered by both the courts below in respect of the negligence on the part of the petitioners. Matters being so, the conviction entered by the courts below, does not call for any interference at all. Regarding the sentence, the learned counsel for the petitioners has pointed out that the first petitioner is aged 73 and the second petitioner is aged 68, and are suffering from various ailments and therefore, they are entitled to the maximum possible leniency. The incident had taken place on 31.7.1995 while the first petitioner was aged 55 and the second petitioner was aged 50. The incident had taken place on 31.7.1995 while the first petitioner was aged 55 and the second petitioner was aged 50. Considering the facts and circumstances of this case, and the further fact that the petitioners are in their twilight, this court is of the view that the sentence imposed by the courts below requires modification. The sentence of imprisonment till the rising of the court on each of the petitioners, under Section 336 IPC, and the sentence of imprisonment till the rising of the court as well as an order to pay a compensation of Rs.25,000/- under Section 357 (3) Cr.P.C., in default, to undergo simple imprisonment for three months, on each of the petitioners, for the offence under Section 304A IPC, will meet the ends of justice in this case.12. In the result, this Crl. Revision is allowed in part and the conviction is confirmed. The sentence is modified as follows:- Each of the petitioners is sentenced to undergo imprisonment till the rising of the court under Section 336 Cr.P.C, and imprisonment till the rising of the court and to pay a compensation of Rs.25,000/- under Section 357(3) Cr.P.C., in default, to undergo simple imprisonment for three months, for the offence under Section 304(A) IPC. The substantive sentences of imprisonments shall run concurrently. Petitioners shall surrender before the judicial First Class Magistrate’s Court. North Paravur (C.C.171 of 1997) to suffer the sentence, and each of them shall deposit an amount of Rs.25,000/-as aforesaid, before that Court, within 15 days from today. If the compensation is deposited or recovered, it shall be paid to the legal heirs of the deceased, under Section 357(3) Cr.P.C.