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2014 DIGILAW 7 (TRI)

Sankar Majumder v. State of Tripura

2014-01-09

S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J.:- Heard Mr. B. Deb, learned counsel appearing for the convict-petitioners as well as Mr. A. Ghosh, learned Public Prosecutor appearing for the State. These revisional petitions filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Cr.P.C. in short) are tied up together for the purpose of disposing the same for a simple reason that those criminal revision petitions have questioned the same judgment and order dated 05.02.2007 delivered in Criminal Appeal No. 13(4) of 2006 by the Addl. Sessions Judge, South Tripura, Belonia convicting the petitioners under Section 304A of the IPC with a fine to the extent of Rs. 50,000/- each and in default thereof to suffer simple imprisonment for six months. The said impugned judgment and order has modified the sentence imposed by the order dated 11.12.2006 by the Judicial Magistrate, 1st Class, Belonia, South Tripura delivered in GR Case No. 288 of 2000. 2. The undisputed fact that has emerged from the record is that on 29.09.2000 two children namely Sanjoy Bhowmik and Sanjib Bhowmik were electrocuted by the electrical cables laid by some persons from the Electrical Department in a place nearby the complainant's courtyard. Having complaint from one Narayan Paul, Belonia PS Case No. 128 of 2000 was registered under Section 336/304A of the IPC and taken up for investigation. After investigation, the charge-sheet was filed against the petitioners. 3. To substantiate the charge as framed under Section 336/304A and 34 of the IPC, which the petitioners had denied completely, the prosecution has examined as many as 14 witnesses and introduced in the evidence a series of documents, from Exbt. 1 to Exbt. 9. After recording the evidence, led by the prosecution, the petitioners were separately examined under Section 313 of the Cr.P.C. It appears from the said statements that no explanation whatsoever had been provided by the petitioners. They have simply denied their criminal liability. On appreciation of the evidence the trial court has returned the judgment of conviction under Section 336/304A and 34 of the IPC and sentenced the petitioners to suffer SI for one month for their commission of offence under Section 336 of the IPC and to pay a fine of Rs. 250/- and in default thereof to suffer further SI for 15 days. 250/- and in default thereof to suffer further SI for 15 days. The petitioners were also convicted under Section 304A of the IPC and sentenced to suffer RI for one year with a fine of Rs. 5,000/- and in default thereof to suffer further SI for 3 months. 4. Having been dissatisfied with the said judgment and order of conviction and sentence, the petitioners had jointly filed an appeal being Criminal Appeal No. 13(4) of 2006 which was dismissed by the judgment and order dated 05.02.2007 passed by the Addl. Sessions Judge, South Tripura, Belonia. However, the Addl. Sessions Judge modified the sentence directing the petitioners to pay only fine of Rs. 50,000/- and in default thereof to suffer SI for 6 months. However, the sentence as passed under Section 304A of the IPC has been confirmed by the impugned judgment. 5. Mr. Deb, learned counsel for the petitioners has submitted that there is no evidence as regards any rash and negligent act of the petitioners or any act attributable to the petitioners endangering life of the others. He has further submitted that there are varying statements as regards the storing of the cables in the open place or about the presence of the petitioners. Mr. Deb, learned counsel has categorically submitted that these varying statements cannot be brushed aside rather those would lead to two different versions and as such the petitioners are entitled to the benefit. Apart that, Mr. Deb, learned counsel has submitted that in absence of the definite evidence as regards the rash and negligent act or the act endangering life, the petitioners cannot be saddled with the criminal liability on invoking the doctrine of vicarious liability. 6. On the other hand, Mr. Ghosh, learned PP appearing for the State has candidly submitted that there is no evidence that the petitioners have connected the cables those were stored in a nearby place with the live wires or their direct or indirect role for electrocution of the children. 7. After scrutinizing the records and on appreciating the submissions of the learned counsel for the parties, it has transpired that PW-4 has given a version which requires serious attention. Smt. Mina Bhowmik, PW-4, has stated in the Court that "About 5 years back three persons of Electric Department supervise work in our locality. 7. After scrutinizing the records and on appreciating the submissions of the learned counsel for the parties, it has transpired that PW-4 has given a version which requires serious attention. Smt. Mina Bhowmik, PW-4, has stated in the Court that "About 5 years back three persons of Electric Department supervise work in our locality. On that date they gave connection of electrical wire in a electric post in my house for extension of the said line to other areas. They posted the said pillar by the eastern side of court yard of our house. They also gave connection of electric wire from the old post to the said new post which is also within the boundary of my house. At evening time those electrical staff kept a bundle of electrical wire on the earth by the side of new pillar and the said electric wire was connected in the pillar. The said pillar posted at a distance of 40 cubits from my home stead. While the Electrical Staff were leaving my house without completion of their work and keeping the electrical wire on the earth, I requested them to remove all electrical wire from that place but ignoring my request they left the place. On the following day at about 10/10.30 A.M. my grandsons namely Sanjoy and Sanjib were came contact with those electric wire and out of electrocution they sustained injuries". From the testimonies of Narayan Paul (PW-1), Maran Bhowmik (PW-2) and Jiban Bhowmik (PW-3) the corroboration of the statement of PW-4 would be available. Only PW-6, Smt. Dipti Bhowmik has stated differently. "On the previous day of the said incident Electric S.D.O. namely Santosh Sarkar, Electrical Jr. Engineer namely Sankar Majumder and the contractor namely Dipak Ghosh supervised the work of extension of electric line in our area. On that date they posted a new pillar within our house premises and they gave connection of electrical wire from an old pillar also situated within our house complex. After giving connection on the new post a portion of electrical wire were kept by them on the earth." This story does not have the corroboration. However, in the cross examination she has stated that she cannot ascertain whether the electrical wire of the old post was thrown to the new connection and for that her son and Sanjib came in contact with the electrical line. However, in the cross examination she has stated that she cannot ascertain whether the electrical wire of the old post was thrown to the new connection and for that her son and Sanjib came in contact with the electrical line. Another witness namely Ganesh Paul, PW-7 has followed the same suit of PW-6 but in the cross examination he has categorically stated that "I don't know whether on any date prior to the incident the staff of Electrical Department after giving connection in a new pillar by shifting the same from the old pillar left the place by fastening the old pillar with a tree by a electric aluminium wire as they failed to complete the work on that date by removing the old pillar due to darkness." He has also stated that "I don't know whether the miscreants tried to steal away the aluminium electric wire from the old post and due to this the old pillar fall on the new connection and by the electric wire which was in the old pillar by which it was fastened with a tree came with contact and out of that electrocution those boys were succumbed to their injuries." 8. What has come to the fore is that the prosecution has failed to prove their case beyond reasonable doubt, rather two versions have distinctly surfaced in the record. Apart that, Mr. Deb, learned counsel for the petitioners has rightly stated that as regards connecting with the live wires with the newly installed wires, there is no evidence at all. In absence of such evidence the petitioners cannot be held guilty of the charge. Apart that, assumably even if the said connection were given by some subordinate staffs of the petitioners, they cannot be held liable for that criminal act inasmuch as the doctrine of vicarious liability in the criminal matters cannot be applied against the petitioners for any kind of act, by their subordinates. Apart that, assumably even if the said connection were given by some subordinate staffs of the petitioners, they cannot be held liable for that criminal act inasmuch as the doctrine of vicarious liability in the criminal matters cannot be applied against the petitioners for any kind of act, by their subordinates. A reference to a decision of the apex court in Nawab Ali v. The State of Uttar Pradesh reported in AIR 1974 SC 1228 may profitably be made to illustrate this aspect: According to Section 149 Indian Penal Code, if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. It is, therefore, incumbent upon the prosecution to show that the person concerned was a member of the unlawful assembly at the time of the commission of the offence. If the person concerned goes away and ceases to be a member of the unlawful assembly before the commission of the offence, no vicarious liability can be fastened upon him Under Section 149 Indian Penal Code because of any subsequent act done by the other members of the unlawful assembly. The conviction of Nawab Ali appellant for the offence Under Section 302 read with Section 149 Indian Penal Code in the circumstances cannot be held to be well found. We, therefore, accept the appeal of Nawab Ali to the extent of setting aside his conviction Under Section 302read with Section 149 Indian Penal Code. He is acquitted on that score. (Emphasis added) The criminal vicarious liability would have fastened the petitioners, had it happened that in their presence live wires were got connected with the electric wire and they were not deterring the subordinate staffs from doing such act or had such connection been given under their instruction. But no such evidence to that effect is available. As such, by way of importing the provisions of Section 34 of the IPC or Section109 of the IPC no liability can be saddled on the petitioners. Situated thus, this Court is of the considered opinion that the charge as framed against the petitioners cannot be held proved. But no such evidence to that effect is available. As such, by way of importing the provisions of Section 34 of the IPC or Section109 of the IPC no liability can be saddled on the petitioners. Situated thus, this Court is of the considered opinion that the charge as framed against the petitioners cannot be held proved. As such the petitioners are entitled to acquittal. Accordingly, the impugned judgment and order are set aside. The petitioners are discharged from the criminal liability on benefit of doubt. The sureties are also discharged from their liability. Send down the LCRs forthwith.