Criminal Appeal No. 551 of 2003 · Kerala High Court · 2007

J.M.JAMES, J. - - - - - - - - - - - - - - - - - - - -Criminal Appeal No.551 of 2003 - - - - - - - - - - - - - - - - - - - -Dated this the 10th day of April, 2007J U D G M E N TThe accused in Sessions Case No.195/2000 of theAdditional District and Sessions Court, Fast Track Court(Ad hoc-II), Kottayam, is the appellant. He was found guilty ofthe offence punishable under Section 304 part (ii) of the IndianPenal Code and was, therefore, convicted and sentenced toundergo rigorous imprisonment for three years and pay a fine ofrupees twenty thousand, in default to undergo simpleimprisonment for sixty days, and there was a direction to payhalf the amount of fine, if realised, to the legal heirs of thedeceased Jayan and remaining half to be paid to the legal heirsof deceased Krishnan. The said conviction and sentence areunder challenge, through this appeal.2.The prosecution case in brief is that deceasedJayan and Krishnan, along with PWs.3 and 4, were engaged inthe arrangements, in connection with the “Kalasa pooja” at DeviTemple, Kothanelloor, on 24/12/1999. PW.2 was doing the Crl.A.No.551/2003-: 2 :-painting work. In connection with the festivities, PWs.3 and 4,along with the two deceased persons, went to the pond to collectlotus flowers. First, Jayan entered and plucked flowers and wasreturning. But immediately, he came into contact with theelectric live wire and was electrocuted. He cried aloud. PWs.3and 4 were not proficient enough to enter the water and,therefore, they informed Krishnan, who was in the car, in which,all of them went to the pond for plucking lotus flowers. Ongetting information, Krishnan, rushed to Jayan. But, the latterwas also electrocuted on he touching Jayan. PW.3 had put thestump of the coconut leaf, in his attempt to draw out theelectrocuted persons, but there was spark. Hence, all of them,PWs.3 and 4, ran to the house of the accused and asked him toswitch off the power supply. Thereafter, they came back andfound that the electrocuted persons, Jayan and Krishnan, weredead. Subsequently, PW.2, went to Ettumanoor Police Stationand gave Exhibit P3, First Information Statement, to PW.12, thethen Assistant Sub Inspector of Police of that Police Station, whorecorded the same and registered Exhibit P3(a), FirstInformation Report, under caption 'unnatural death'. The steps Crl.A.No.551/2003-: 3 :-according to law were taken. PW.12 conducted Exhibit P5inquest on deceased Krishnan. PW.13 conducted Exhibit P4inquest on Jayan. PW.1 was the Lecturer of Forensic Medicineat Medical College, Kottayam. He conducted the autopsy on thebodies of Krishnan and Jayan and issued Exhibits P1 and P2postmortem certificates, respectively. PW.14, the CircleInspector of Police, conducted the investigation. He also drewup Exhibit P10 scene mahazar. PW.16 was engaged to takephotographs of the scene, including the bodies. PW.17 is theAssistant Engineer of local station of the Kerala State ElectricityBoard, who gave Exhibit P14 report regarding the electricconnection to the appellant, basing on the local inspectionconducted by him. PWs.9 and 10 are the District ElectricalInspectors of the area. PW.10 issued Exhibit P8 certificateshowing that the accused was responsible for unauthorisedconstruction of electric fence and giving electricity supply to thesaid fence. He came to this conclusion from his local enquiryand from the statement of the witnesses. PW.15, the CircleInspector of Police completed the investigation and laid the finalcharge under Section 304 Part (i) of the I.P.C. Crl.A.No.551/2003-: 4 :-3.To prove the fence, the prosecution examined 17witnesses and marked 14 documents. Thirty-one materialobjects were also marked and identified. It was afterappreciating these evidence, the lower court convicted andsentenced the appellant as stated above.4.The counsel for the appellant argued that therewas no charge framed by the court against the appellant that thedeceased persons died of electrocution. There was also nocharge on the appellant that it was he who was responsible forputting the electric fence, passing electricity to the fence, andtook unauthorised electric connection. Another contention ofthe counsel is that the prosecution had completely failed toprove that the material objects like wires and other implements,collected at the time of preparation of Exhibit P10, scenemahazar, by PW.14, were either belonging to the appellant, orused by him for causing the alleged death of the deceasedpersons. The counsel, therefore, submitted that the findings ofthe court below are unsustainable and, hence, prayed that theappeal may be allowed and the appellant may be acquitted. Crl.A.No.551/2003-: 5 :-5.The learned Public Prosecutor, however,submitted that Exhibit P8 report shows that it was the appellant,who had used the electric connection of his pump house, forpassing electricity to the electric fence, unauthorisedly put up byhim and, Exhibit P10 scene mahazar reveals the materials usedfor the said purpose. Therefore, prayed that the prosecution hasproved the case against the appellant, as required by law.6.I have gone through the evidence on record.The prosecution has got a case that PWs.2, 3 and 4 and thedeceased persons were engaged in connection with thefestivities of the local Devi Temple. It was in connection with thesame that they came to the pond, where lotus flowers wereavailable, so that the same could be collected for the use in thetemple. As stated above, after plucking lotus flowers, Jayan wasreturning and he was electrocuted. On information, Krishnanalso went there and he was also electrocuted. Both of themdied. 7.The point that arise for consideration is, what isthe charge that the appellant has to answer, as framed by thetrial court. The court framed the charge as follows:- Crl.A.No.551/2003-: 6 :-“That you, on or about 24/12/1999, at 10.30p.m at Neendoor Kara in Onamthuruthu Village,caused the death of (1) Jayan, aged 26 years, S/o.Raghavan Nair, Olickal Veedu, Kothanelloor, (2)Krishnan aged 26 years, S/o. Narayanan Nair,Niravathu Veedu, Kothanelloor, with the knowledgethat your act was likely to cause death and therebycommitted an offence of culpable homicide notamounting to murder, punishable U/s.304, Part I ofthe Indian Penal Code and within the cognizance ofthis court.And I hereby direct that you be tried beforethis court on the said charge.”8.Even if the court charge is a mistake, the samecould be corrected at the appellate stage also, provided, there isother evidence available to show that it was the accused andaccused alone who had committed the offence of putting up theunauthorised fence, passing electricity through that fence,thereby endangered the life of others, who came into contactwith the said fence, and thus committed culpable homicide notamounting to murder.9.PWs.3 and 4 are the persons who were with thedeceased persons and who were, prior to and after the Crl.A.No.551/2003-: 7 :-occurrence, available in the scene of occurrence. PW.2 came tothe place of occurrence on information that two persons wereelectrocuted. In Exhibit P3, F.I.S., as well as in the oralevidence of PWs.3 and 4, there is nothing available to show thatas to who put up the fence and passed electricity through it. Icould not find any material on evidence revealing that there wasa fence at all, as alleged by the prosecution. Exhibit P8 report,submitted by PW.10 cannot be accepted, for he cannot come tohis own conclusion that it was appellant who did the act ofputting up the fence and passing the electricity through it. Theinvestigating officer has to investigate and come to anindependent conclusion and such witnesses from whom hecollected the materials have to be placed before the court. Onlyafter cross-examination of those witnesses, and appreciating theentire evidence the court can come to a clear finding whetherthe act alleged against the appellant has been proved or not. 10.The lower court discussed the facts and came tothe conclusion that the property belongs to the appellant. PW.7,the local Village Officer, gave Exhibit P6 ownership certificate.Merely, because the appellant is in possession of the property Crl.A.No.551/2003-: 8 :-and he is having the consumer number, for the supply of theelectricity by the K.S.E.B, as deposed by PW.17, cannot be thesole reason to come to the finding that he used the saidelectricity to pass through the fence. Although during ExhibitP10 scene mahazar, PW.14, the Investigating Officer collectedlot of materials from the place of occurrence, nothing had beenbrought out to fasten the appellant with the said materials socollected, during the preparation of Exhibit P10 scene mahazar.11.To prove the offence under Section 304 I.P.C,the prosecution has to establish that there was a death of humanbeing. In this case, Jayan and Krishnan died. There is nochallenge of the evidence of PW.1 and Exhibits P1 and P2postmortem certificates in respect of Krishnan and Jayan. 12.The next point, the prosecution has to prove isthat the death of Krishnan and Jayan had been caused by theappellant, by doing an act with the intention of causing death orwith the intention of such bodily injury, as is likely to causedeath or with the knowledge that he is likely, by such an act, tocause their death. Neither the evidence of PWs.9 and 10, theDistrict Electricity Inspectors nor Exhibit P8 report of PW.10, Crl.A.No.551/2003-: 9 :-can be accepted and acted upon. The prosecution has to clearlyprove that the accused has put in an unauthorised fence, tookelectric connection from the allotted source of electricity, ascertified by PW.17, in his P14 report, passed electricity throughthe fence, thereby, caused the death of both the persons, and hedid so, intentionally or knowing that his such act would causetheir death.13.As discussed above, none of the witnesses haddeposed that the appellant had put in any fence, passedelectricity from his house or from his pump house to the saidfence and, because of the passing of the electricity through thisalleged fence, Krishnan and Jayan, who went to pluck lotusflowers from the pond were electrocuted. Neither PWs.9 and 10nor PW.17, the experts connected with the ElectricalInspectorate and the Assistant Engineer of the local K.S.E.Bcould depose that there was any fence, through which electricconnection could be passed, or any material used for takingelectric connection from the electric supply used by theappellant. It can thus be seen that the prosecution has failed toprove that the death of Krishnan and Jayan were due to any Crl.A.No.551/2003-: 10 :-intentional act of the appellant, in passing electricity through thefence put in by him, or the appellant did any act with theknowledge that the same would likely to cause the death ofanyone.14.As rightly argued by the learned counsel for theappellant, after the electrocution of both the persons, none ofthe prosecution witnesses, PWs.2 to 4, had seen any electricfence in the area. One obvious question that arises is, as to howthe electrocution was stopped, after the switching off of thepower supply from the house of the appellant. But there is noevidence available beyond the shadow of doubt that it was theappellant, who had passed the electricity to any object, with theintention of causing the death of human beings or causing suchbodily injury as is likely to cause death. Therefore, that aspectalso do not help the prosecution. I have gone through theevidence of PW.10. Except saying that the appellant had takenunauthorised connection to the fence, he did not elaborate. Hehad no material with him to substantiate his statement, exceptdeposing that he got that information on his local enquiry fromthe statements of the witnesses and his own findings. The same Crl.A.No.551/2003-: 11 :-cannot be accepted as stated before the investigating officer ordeposed before the court. PW.14 also speaks on the same tone,but without any legal corroboration. 15.To convict a person, the prosecution has toprove the offence alleged against him beyond the shadow ofdoubt. Mere surmises, conjectures and conclusions cannotsubstitute the legal evidence required under the criminal law.The evidence should be either direct or through circumstances.If it is direct, it should be oral or/and documentary. In this case,I do not find that the evidence of PWs.2 to 4 are sufficient tocome, in any way, to any finding, establishing the ingredientsrequired under the offence alleged against the appellant. Thedocumentary evidence available are also absolutely insufficientto come to any definite finding against the appellant.16.In the event of circumstantial evidence, theprosecution has to prove each link connecting the offenceagainst the accused and no one else. In the case at hand, thereis absolutely no circumstances made available before this Courtto show that the appellant was, in any way, connected with theputting up of the fence, passing of the electricity through the Crl.A.No.551/2003-: 12 :-said fence, with an intention or knowledge, as legally requiredunder the offence alleged against him.17.In view of the above discussions, I hold that theprosecution has failed to prove the case under Section 304Part (ii) I.P.C as found by the learned Additional Sessions Judge.Therefore, the conviction and sentence passed by the learnedAddl.Sessions Judge is set aside. The appellant is set at libertyforthwith, cancelling his bail bond.18.All the documents seized during the search ofthe house of the appellant by PW.14, shall be returned to theappellant, without any delay, on receipt or production of a copyof this judgment.This appeal is allowed as above.(J.M.JAMES)Judgems Crl.A.No.551/2003-: 13 :-J.M.JAMES, J. - - - - - - - - - - - - - - - - - - - -Crl.A.No.551 of 2003 - - - - - - - - - - - - - - - - - - - -J U D G M E N T 10th April, 2007