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2019 Supreme(Bom) 283
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
M.G. GIRATKAR, J.
RAMESH - Appellant
Versus
STATE OF MAHARASHTRA - Respondent
Criminal Revision Application No. 197 of 2011
Decided on : 12-02-2019
Advocate Appeared:
C.G. Barapatre, Adv., I.J. Damle, Adv.
Headnote:
Indian Penal Code - Section 304-II – Appeal against conviction - Electric connection illegally – Claim of compensation - Whether there is any perversity or illegality in impugned judgments orders - Learned Counsel for the accused persons has pointed out evidence and submitted that the accused persons are not connected with the crime in question - Main accused 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 - As per the case of prosecution accused and his son are having agricultural land - Deceased had also field adjoining to their field - There was standing crop in the field of accused - Therefore to protect the same from wild animals raised iron wire fencing with wooden poles around his field - He obtained electricity supply from the adjoining field and connected electricity to the said fencing of iron wire - Accused No.1 supplied the electric connection illegally had gone to his field and came in contact with live wire fencing and got electrocuted and died on the spot - Accused No.2 informed was lying near 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 and present accused – Held, 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 to field of accused - Accused is the son of accused - Died during pendency of trial - As per the oral evidence of PW Nos.1 to 3 they had seen electric wire from the field of up to field - There is nothing on record to disbelieve their evidence - Evidence adduced by prosecution is reliable - On the basis of well cogent evidence accused persons came to be convicted - There is no reason to disturb findings of both the Courts below - Evidence on record clearly shows that accused persons are rightly convicted by trial Court and upheld by the first appellate Court - Hence there is no merit in the present revision - Learned Counsel for the applicants/accused has submitted that the incident took place - Accused persons are contesting the matter from one Court to another - 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 - 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 - In the present case 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 deceased – Therefore accused persons are rightly convicted for offence punishable under Section 304-II of the Indian Penal Code - Revision is partly allowed
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.
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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. 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 t
