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2019 DIGILAW 413 (BOM)

RAMESH v. STATE OF MAHARASHTRA

2019-02-12

M.G.GIRATKAR

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JUDGMENT : M. G. GIRATKAR, J. 1. The present revision is against the judgment of conviction for the offence punishable under Section 304-II of the Indian Penal Code. Appeal was filed before the Sessions Judge, Nagpur. Learned Sessions Judge dismissed the appeal by judgment dated 15th December, 2011. 2. Heard Shri C.G. Barapatre, learned Counsel appearing on behalf of the applicants (hereinafter referred as accused) and Shri I.J. Damle, learned Additional Public Prosecutor appearing on behalf of the respondent/State. 3. XXX XXX XXX 4. Shri Barapatre, learned Counsel for the accused persons has pointed out the evidence and submitted that the accused persons are not connected with the crime in question. Main accused was Zibal Patil and he died during the pendency of trial. Both the accused are not involved in the crime. They are wrongly convicted by the trial Court. He has further submitted that there is no material evidence to connect the accused. Hence, they are entitled for acquittal. 5. As per the case of prosecution, accused Zibal Patil and his son Subhash Patil are having agricultural land at Varhala Shivar. Deceased Sudhakar Girhe had also field adjoining to their field. There was standing crop in the field of accused Zibal. Therefore, to protect the same from wild animals, Zibal Patil raised iron wire fencing with wooden poles around his field. He obtained electricity supply from the adjoining field of Ramesh Bagaitkar (applicant/accused No.1) and connected the electricity to the said fencing of iron wire. Accused No.1 Ramesh supplied the electric connection illegally to Zibal Patil. On 21st October, 1998 at about 07:00 p.m., Sudhakar Girhe had gone to his field and came in contact with the live wire fencing and got electrocuted and died on the spot. Accused No.2 Subhash Patil informed Krishna Girhe and others that Subhash was lying near the field and on receiving the information, they went to the spot of incident. A report was lodged. Offence punishable under Sections 304-A and 109 of the Indian Penal Code came to be registered against Zibal Patil and present accused. Charge sheet was filed against three accused. During the pendency of trial, Zibal Patil died. Charge was framed against accused Ramesh and Subhash (present applicants). While framing the charge, trial Court came to the conclusion that it was not the case of 304-A but it is 304-II of the Indian Penal Code. Charge sheet was filed against three accused. During the pendency of trial, Zibal Patil died. Charge was framed against accused Ramesh and Subhash (present applicants). While framing the charge, trial Court came to the conclusion that it was not the case of 304-A but it is 304-II of the Indian Penal Code. Therefore, charge was framed for the offence punishable under Section 304-II of the Indian Penal Code. 6. After framing the charge, the prosecution has examined in all 12 witnesses. Statements of accused were recorded. After hearing both the sides, learned trial Court has convicted both the accused for the offence punishable under Section 304-II of the Indian Penal Code. Appeal was filed and the same came to be dismissed. 7. Shri Barapatre, learned Counsel for the applicants has submitted that nobody seen Zibal while taking electric connection from the field of accused Ramesh. There is no evidence to show that accused Ramesh supplied the electric connection to the field of Zibal and accused Subhash. Learned Counsel has further submitted that the prosecution has not proved beyond reasonable doubt that accused persons have committed offence punishable under Section 304-II of the Indian Penal Code. 8. Learned APP Damle has pointed out evidence adduced by the prosecution and the enquiry report submitted by the Assistant Electrical Engineer. Those evidence clearly show that accused Ramesh supplied electric connection up to the well situated in the field of Zibal and Subhash. Evidence of PW-1 (Krishna Girhe), PW-2 (Sarita Girhe) and PW-3 (Satyafulabai Girhe) show that they had seen electric wire from the motor pump/electric meter of accused Ramesh situated in his field up to the well of Zibal and Subhash. There is no dispute about the death of deceased Sudhakar. Cause of death was due to electric shock. Postmortem Report (Exh.30) clearly shows that cause of death was due to electric shock. The prosecution has proved beyond reasonable doubt that due to negligent act on the part of accused persons, deceased Sudhakar died. Accused persons had no intention but having knowledge that by supplying electric connection and by connecting the live electric wire to the iron fencing, there is every possibility of this type of accident. 9. Shri Damle, learned APP has supported the impugned judgments and submitted that accused are rightly convicted. At last, learned APP submitted that the present revision is without any merit and liable to be dismissed. 10. 9. Shri Damle, learned APP has supported the impugned judgments and submitted that accused are rightly convicted. At last, learned APP submitted that the present revision is without any merit and liable to be dismissed. 10. While deciding the revision, Court has to see whether there is any perversity or illegality in the impugned judgments/orders. From the perusal of the judgments of trial Court and first appellate Court, no such perversity or illegality is noticed. Evidence adduced by the prosecution clearly shows that accused Ramesh allowed Zibal and Subhash to get electric supply from the electric meter of accused Ramesh. Accused Zibal connected live electric wire to the iron fencing of his field. The prosecution has proved that deceased Sudhakar went to his field. Accidentally, he touched the fencing of the field of accused Zibal and Subhash. Therefore, he died on the spot. 11. The investigating agency collected material evidence in the form of opinion of expert. Assistant Electrical Engineer submitted his report vide Exh.62. As per his report, he went to the spot of incident and found supply of electric connection from the field of accused Ramesh to the field of accused Zibal. Accused Subhash is the son of accused Zibal. Zibal died during the pendency of trial. As per the oral evidence of PW Nos.1 to 3, they had seen electric wire from the field of Ramesh up to the field of Zibal. There is nothing on record to disbelieve their evidence. The evidence adduced by the prosecution is reliable. On the basis of well cogent evidence, accused persons came to be convicted. 12. There is no reason to disturb the findings of both the Courts below. The evidence on record clearly shows that accused persons are rightly convicted by the trial Court and upheld by the first appellate Court. Hence, there is no merit in the present revision. 13. At this stage, Shri Barapatre, learned Counsel for the applicants/accused has submitted that the incident took place in the year 1998. Since the year 1998, accused persons are contesting the matter from one Court to another. Now, they are aged about more than 50 years. They are only earning members of their respective families. Therefore, lenient view may be taken by modifying the sentence. Accused persons have undergone the jail sentence of ten days and also paid fine amount. 14. Since the year 1998, accused persons are contesting the matter from one Court to another. Now, they are aged about more than 50 years. They are only earning members of their respective families. Therefore, lenient view may be taken by modifying the sentence. Accused persons have undergone the jail sentence of ten days and also paid fine amount. 14. Punishment provided under Section 304-II of the Indian Penal Code reads as under :- "... or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death." 15. In the present case, the accused persons had knowledge of incident like touching the person to the fencing connected to electric supply may die due to electric shock. But, they had no intention to kill the deceased. Therefore, accused persons are rightly convicted for the offence punishable under Section 304-II of the Indian Penal Code. 16. Looking to the submission of Shri Barapatre, learned Counsel for the applicant/accused, to met the ends of justice, following order is passed. Revision is partly allowed. Conviction for the offence punishable under Section 304-II of the Indian Penal Code is maintained. However, sentence is modified to the extent that the applicant Nos.1 and 2 are sentenced to the period already undergone in jail. The applicants/accused are directed to pay compensation of Rs. 5,000/- (rupees five thousand only) each totalling to Rs. 10,000/- to the wife of deceased Sudhakar Girhe within a period of two weeks from today. If they fail to deposit compensation amount before the trial Court within a period of two weeks from today, then they shall undergo the jail sentence as directed by the Courts below.