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2021 DIGILAW 80 (KAR)

Subramanya Rao v. State of Karnataka

2021-01-08

V.SRISHANANDA

body2021
ORDER : V. Srishananda, J. 1. Accused No. 1 in CC No. 5718/2003 is in revision challenging the order passed by the learned JMFC, III Court, Mangaluru by judgment dated 27.1.2006 whereby the Revision Petitioner - first accused was convicted for the offence punishable under Section 304-A of IPC, and ordered to undergo simple imprisonment for six months and to pay fine of Rs. 2,000/- with a default sentence of simple imprisonment for one month and further ordered to pay Rs. 3,000/- as compensation to the legal representatives of the deceased which was confirmed in Criminal Appeal No. 86/2006 on the file of the IV Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru. 2. The parties are referred to as accused and prosecution as per their original ranking for the sake of convenience. 3. The germane facts of the case unfold as under:- The Revision Petitioner is the owner of Manjunatha Re-trading Rubber Industries [hereinafter referred to as the 'Establishment'] situated at Kaikamba of Kulashekara village, Mangaluru. In respect of an incident that occurred on 11.3.2003 at about 3.00 p.m., the tank fixed to the boiler to flow water kept in the said industry was exploded all of a sudden and piece of rod came into contact with one Durgappa shetty, the worker of the said industry, had sustained injuries and died at the spot. A case in crime came to be registered in Crime No. 71/2003. It is alleged in the said complaint that Subramanya Rao is the owner of the said Establishment and Sathish naik was the supervisor of the said industry and because of their negligence, the tank fixed to the boiler to flow water from the tank exploded and thus sought for taking action against the accused. Police conducted a detailed investigation and filed charge sheet against the accused persons named in the first information. Thereafter, the learned Magistrate took cognizance of the offence and secured the presence of the accused persons and charge was framed. Accused pleaded not guilty. Hence, trial was held. 4. In order to prove the case of the prosecution, prosecution examined 15 witnesses as PWs. 1 to 15 and relied on documentary evidence which were exhibited and marked as Exhibits P-1 to P-16. Accused statement as contemplated u/s. 313 Cr.PC, was recorded and thereafter, defence lead evidence by examining two witnesses namely Subramanya and Rama as DWs. 4. In order to prove the case of the prosecution, prosecution examined 15 witnesses as PWs. 1 to 15 and relied on documentary evidence which were exhibited and marked as Exhibits P-1 to P-16. Accused statement as contemplated u/s. 313 Cr.PC, was recorded and thereafter, defence lead evidence by examining two witnesses namely Subramanya and Rama as DWs. 1 & 2 and relied on 4 documents on their behalf which were exhibited and marked as Exs. D-1 to D-4. Learned Magistrate on conclusion of the recording of the evidence, heard the parties in detail and passed an order of conviction against the accused persons as referred to supra. 5. Being aggrieved by the order passed by the learned Magistrate, the accused persons preferred an appeal in Criminal Appeal No. 86/2006 on the file of the IV Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru. The learned Judge in the first appellate court secured the records and after hearing the parties in detail and on re-appreciation of the entire materials on record, upheld the order passed by the learned Magistrate convicting the accused persons and dismissed the appeal. It is those judgments which are the subject matter of this Revision Petition. 6. Sri M.R.C. Manohar, learned counsel for the Revision Petitioner contended that both the courts have grossly erred in not appreciating the case so as to attract the offence alleged against the present Revision Petitioner. He vehemently contended that there is no iota of evidence placed by the prosecution to establish the nexus between the Revision Petitioner and the incident that occurred within the premise of the Establishment. The incident occurred in the Establishment where the boiler got exploded. He also pointed out that just because the Revision Petitioner is the son of the ipso facto, result in attracting the criminal liability, but which aspect of the matter is totally ignored by both the Courts and sought for allowing Revision Petition. 7. Per contra, Sri Mahesh Shetty, learned High Court Government Pleader representing the learned State Public Prosecutor vehemently contended that both the Courts on facts have clearly held that there is a nexus between the Revision Petitioner and the incident. 7. Per contra, Sri Mahesh Shetty, learned High Court Government Pleader representing the learned State Public Prosecutor vehemently contended that both the Courts on facts have clearly held that there is a nexus between the Revision Petitioner and the incident. Therefore, when both the Courts have concluded on the factual finding, this Court in revision cannot revisit the factual aspect of the matter which is not within scope and ambit of the revisional jurisdiction and sought of dismissal of the Revision Petition. 8. In view of the rival contentions, the following points would arise for consideration: "(1) Whether the finding recorded by the learned Magistrate that the revision petitioner has committed an offence punishable under Section 304A of IPC and thus held him guilty of the offence? (2) Whether the finding recorded by the learned Magistrate confirmed by the first Appellate Court is suffering from patent defect resulting in error of jurisdiction and illegality? 9. Answer to the above points are in the Affirmative for the following reasons: REASONS 10. In the case on hand, the incident that occurred in the Establishment; wherein a boiler got exploded; whereby there was a death of Duggappa Shetty is not in dispute. In the complaint itself it is alleged that Revision Petitioner is the owner of the Establishment and second accused by name Sathish Nayak was the Supervisor of the said Establishment. It is also contended in the complaint that on the fateful day i.e. 11.03.2003 around at 3.00 p.m. on account of negligence on the part of the accused persons the water tanker connected to boiler exploded whereby the iron pieces of the tank fell on the face and chest reason of the Duggappa Shetty resulting in grievous injuries and ultimately succumbed to the injuries. The police after registering the crime for the offence punishable under Section 304-A of IPC carried out detailed investigation and filed charge sheet against the accused persons. 11. In order to prove the case of the prosecution, one Jayaram is examined as PW. 1, who deposed about the incident stating that Duggappa Shetty was an operator in the Establishment and stated that the Revision Petitioner is the owner and the second accused in the said case is the Supervisor. In his cross examination, he admits that he had left the Manjunatha Rubber Re-trading Industry about an year back. 1, who deposed about the incident stating that Duggappa Shetty was an operator in the Establishment and stated that the Revision Petitioner is the owner and the second accused in the said case is the Supervisor. In his cross examination, he admits that he had left the Manjunatha Rubber Re-trading Industry about an year back. He has also deposed that the said Industry is situated in one compound along with other two industries. He says that he has signed the register maintained in the said Establishment. He has deposed that he has studied up to 5th Standard. He says that since he has signed attendance register maintained by the Establishment, he pleads that the first accused is the owner. He has specifically answered that he does not know who are the partners of the said Establishment and he does not know who is Sathyanarayana Rao. He also admits that office of the first accused is situated in Manjunatha Mixing Mill and not Rubber re-trading Industries. 12. PW. 2 Guruprasad has also deposed about the incident. In his cross examination, it is elicited that office of the first accused is situated in Mangaluru. PW. 3 Thilakraj has also deposed about the incident. In his evidence also, there is nothing available to establish nexus between the accused and the incident. PW. 4 Rajesh admits in his examination in chief itself that the Company belongs to the father of the first accused. 13. PW. 5 Sadananda Shetty, turned partly hostile and PW. 6 Vasudeva Shetty is a panch witness, PW. 7 Dr. Arunkumar Rao is a Doctor, PW. 8 Ravi is the another panch witness. PW. 9 Konappa Reddy is the Investigating Officer who conducted the investigation partly. In his evidence also he has deposed that he has not collected any material to establish that the factory belongs to first accused. PW. 10 Seshappa Gowda, is the Constable who registered the case. PWs. 11 and 12 Ashok Kav and Durgesh are other panch witnesses. PW. 13 Bhujanga has turned hostile. PW. 14 Ashwath Narayana is the PSI, who conducted the further investigation and PW-15 Ashok R. Gavankar, is working as Senior Assistant Director in the said company. In his evidence also there is nothing available to establish that first accused is the owner of the Establishment. 14. The documentary evidence placed on record are exhibits P1 to P16 and D1 to D4. 15. In his evidence also there is nothing available to establish that first accused is the owner of the Establishment. 14. The documentary evidence placed on record are exhibits P1 to P16 and D1 to D4. 15. The first accused got himself examined as DW. 1 wherein he has categorically stated that Manjunatha Re-Traders belongs to his father. There are two more subsidiary factories namely Manjunatha Re-trading Industries and Manjunath Tyre Re-trading works and he has no nexus whatsoever in any one of these Companies/organisations. He has specifically stated that where the incident has taken place, the factory belongs to his father and he has produced a document which is the salary register pertaining to the said factory which is marked as Ex. D1. In his cross examination, it is elicited that his father died about three months earlier to the date of cross examination. In his evidence also he has not collected any material to establish that the factory belongs to the first accused and he has answered that the business of the said factory was looked after by his father exclusively by his father. He has also stated that he has never interfered with the activities of his father and the correspondence of the factory of his father is looked after by his elder brothers namely Sathyanarayana and Gopal. He has also answered that there was a partition between him and his brothers and his father. He admits that in Ex. D1, it is not mentioned that Umesh Rao is the owner of the said Establishment. 16. From the above evidence, it is crystal clear that it was primarily for the prosecution to establish that first accused is the owner of Sri M.R. Industries situated in Kulashekara Chowki, Mangaluru where the incident has occurred. As discussed above, there is no material available on record to establish that first accused is the owner of the said Establishment. Further, even after the accused stated in 313 Cr.PC. statement that he is not the owner of the Establishment and lead defence evidence in this regard, prosecution has failed to summon any records from the concerned authorities; any records from the labour department or such other governmental organization whereby the nexus between the accused and the Establishment could have been established. 17. statement that he is not the owner of the Establishment and lead defence evidence in this regard, prosecution has failed to summon any records from the concerned authorities; any records from the labour department or such other governmental organization whereby the nexus between the accused and the Establishment could have been established. 17. It is well established principle of law that it is for the prosecution to establish that accused is responsible for the incident by placing cogent evidence on record and the said allegation should be proved beyond reasonable doubt. 18. In the case on hand, it is the specific case of the prosecution that first accused is the owner of the Establishment. However, learned High Court Government Pleader vehemently contended that though on record, the factory stands in the name of Umesh Rao, who is the father of the Revision Petitioner, it is the Revision Petitioner who is looking after the day today affairs of the Establishment and therefore, both the courts have rightly held that the Revision Petitioner is liable for the offence alleged against him. 19. In other words, learned High Court Government Pleader pressed into service the principles of vicarious liability to substantiate the charges levelled against the Revision Petitioner. 20. It is well established principle of law that in a matter of this nature, application of principles of vicarious liability to hold a person liable for the criminal offence is alien to criminal jurisprudence. No doubt, in the Indian Penal Code itself, certain offences depend on principles of vicarious liability like the offence u/s. 149, 154 etc., of the Indian Penal Code. But if the statute is silent in respect of the other offences, the court cannot import the doctrine of vicarious liability to convict a person for such of the offences. 21. In this regard, gainfully this court relies on the judgment of the Hon'ble Apex Court in the case of Shamsunder and others Vs. State of Haryana reported in (1989) 4 SCC 630 wherein it is held at para Nos. 8 to 10 as under: "8. Counsel for the State, however, relied upon the legal liability of partners and he argued that it would be for the accused partners to prove that the offence was committed without their knowledge or in spite of exercising due diligence on their part. He relied upon the proviso to sub-section (1) of Section 10. 8 to 10 as under: "8. Counsel for the State, however, relied upon the legal liability of partners and he argued that it would be for the accused partners to prove that the offence was committed without their knowledge or in spite of exercising due diligence on their part. He relied upon the proviso to sub-section (1) of Section 10. It is true that under the Indian Partnership Act, 1932, a "firm" or "partnership" is not a legal entity but is merely an association of persons (who have) agreed to carry on business. It is only a collective name for individuals, carrying on business in partnership. The essential characteristic of a firm is that each partner is a representative of other partners. Each of the partners is an agent as well as a principal. He is an agent insofar as he can bind the other partners by his acts within the scope of the partnership agreement. He is a principal to the extent that he is bound by acts of other partners. In fact every partner is liable for an act of the firm. Section 2(a) of the Partnership Act defines an "act of a firm" to mean any act or omission by all the partners, or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm. 9. But we are concerned with a criminal liability under penal provision and not a civil liability. The penal provision must be strictly construed in the first place. Secondly, there is no vicarious liability in criminal law unless the statute takes that also within its fold. Section 10 does not provide for such liability. It does not make all the partners liable for the offence whether they do business or not. 10. It is, therefore, necessary to add an emphatic note of caution in this regard. More often it is common that some of the partners of a firm may not even be knowing of what is going on day to day in the firm. There may be partners, better known as sleeping partners who are not required to take part in the business of the firm. There may be ladies and minors who were admitted for the benefit of partnership. They may not know anything about the business of the firm. There may be partners, better known as sleeping partners who are not required to take part in the business of the firm. There may be ladies and minors who were admitted for the benefit of partnership. They may not know anything about the business of the firm. It would be a travesty of justice to prosecute all partners and ask them to prove under the proviso to sub-section (1) that the offence was committed without their knowledge. It is significant to note that the obligation for the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in sub-section (1) is established. The requisite condition is that the partner was responsible for carrying on the business and was during the relevant time in charge of the business. In the absence of any such proof, no partner could be convicted. We, therefore, reject the contention urged by counsel for the State. 22. On careful perusal of the principles of law in the aforesaid judgment and applying those principles to the case on hand, it is crystal clear that the prosecution came out with a definite case that accused is the owner of the Establishment and he was in charge of the establishment. None of the prosecution witnesses have ever stated before the learned Magistrate that though the father of the first accused is the owner of the Establishment, but yet, it is the first accused who was managing the day today affairs of the Establishment. Investigation Officer who filed the charge sheet against the accused did not collect a single document to establish that it is the first accused, who is the owner of the Establishment. Prosecution did not make any attempt to summon the necessary records even after specific answer given by the accused to question No. 7 while recording the statement of accused that he is not the owner of the Establishment. At least at the time of cross examination of the first accused, prosecution did not confront any material to show that the owner of the Establishment or he was in charge of day today affairs of the Establishment. Mere suggestions by the prosecution that he had managed the day today affairs of the Establishment would not take the seat of proof. Mere suggestions by the prosecution that he had managed the day today affairs of the Establishment would not take the seat of proof. 23. It is well established principle of law that the prosecution has to travel a long distance between 'may be proved' and 'must be proved'. It is also equally well established that suspicion how so ever strong would not take the seat of proof. In the backdrop of these well established principles of law, this court is of the considered opinion that learned Magistrate and the learned Judge in the first Appellate Court did loose sight of these principles while recording an order of conviction and upholding the same as against the Revision Petitioner which has resulted a patent defect in the finding recorded by the learned Magistrate and upheld by the first Appellate Court. 24. Resultantly, in the absence of iota of evidence to establish the nexus between the incident that occurred in the Establishment and that of the first accused, the Revision Petitioner, the conviction recorded by the learned Magistrate and up held by the first Appellate Court needs interference in this Revision Petition by this court. 25. In view of the foregoing discussions and in the absence of materials available on record, does not establish negligent act of the first accused [Revision Petitioner] in the incident. Therefore, the offence alleged against the Revision Petitioner under Section 304A of IPC, needs to be set aside by allowing the Revision Petition. Hence, following order is passed : ORDER The Revision Petition is allowed. The order of the learned Magistrate convicting the accused No. 1 (Revision Petitioner herein) in CC No. 5718/2003 dated 27.01.2003 on the file of the JMFC (III) Court, Mangaluru for the offence punishable under Section 304A of IPC; confirmed by the first Appellate Court in Criminal Appeal No. 86/2006 dated 5.2.2015 on the file of the IV Addl. District and Sessions Judge, DK, Mangaluru, is hereby set aside. Bail bonds if any executed by the first accused stands discharged. Fine amount if any already deposited is ordered to be returned to the first accused.