Khirod Bhuyan, vs State of Assam.

This appeal, under Section 374(2) of the Cr.P.C., is preferred against the judgment and order, dated 10-02-2009, passed by learned Sessions

Judge, Morigaon, in Sessions Case No. 116 of 2007, convicting the accused-appellants, under Sections 304(A) of the IPC and sentencing the

accused-appellant to undergo rigorous imprisonment for 2 (two) years and to pay a fine of Rs.5,000/-, in default, to suffer rigorous imprisonment

for 3 months.

None appears for the appellant on call. I have heard Mr. PS Lahkar, learned Additional Public Prosecutor, Assam.

In view of the fact that this is an old pending case and that none appeared for the accused-appellant on call, this Court proposes to dispose of

this criminal appeal after perusal of the materials on record including the record of the learned trial Court and the evidence of the witnesses. I have

also perused the impugned judgment.

The fact leading to the case is that, on 03-09-2006, an FIR was lodged by Sri Dip Bordoloi with the Jagiroad Police Station alleging that on that

day, at about 5.30 a.m. when his father Mansing Bordoloi was going towards Nazarapar, on foot, and on his way, he attempted to remove a small

branch of bamboo lying on the road from the compound of Khirod Bhuyan, the electrified wire placed by the accused-appellant on his boundary

fencing came in touch of his father and resulted in instantaneous death of his father.

On receipt of the FIR, Jagiroad Police Station registered a case, being No. 198/2006, under Section 304 of the IPC, on the basis of which, GR

Case No. 868/2006, was registered. After registration of the police case, investigation was carried out, and during investigation, the Investigating

Police Officer examined the witnesses under Section 161 of the Cr.P.C., collected the post mortem and inquest report, prepared sketch map of

the place of occurrence and on completion of investigation laid charge-sheet against the accused-appellant, under Section 304 of the IPC.

The learned trial Court, after exhausting all the required formalities, framed formal charge under Section 304(A) of the IPC, to which the

accused-appellant pleaded innocence. Hence, the trial commenced.

After completion of the trial, the learned trial Court convicted the accused-appellant, as indicated above.

In this case, prosecution examined as many as 10 witnesses, including the doctor, who performed the post mortem examination as well as the

Investigating Police Officer. The defence declined to adduce any evidence. The defence case is of total denial. In the statement, recorded under

Section 313 Cr.P.C., the accused-appellant denied the fact of commission of the offence alleged.

I have scanned the evidence of the prosecution witnesses.

The evidence of PW1/informant is that while his father/deceased Khirod Bhuyan was proceeding for his morning walk, he was required to

remove a bamboo, which fell on the road crossing the boundary fencing of the accused-appellant, and, then, he immediately got electrocuted as the

boundary of the accused-appellant was electrified drawing an electric line from his kitchen to prevent others to enter into his boundary. In the

cross-examination, it has come out that the staff of the Electric Department came to the place of occurrence and disconnected the electrocuted line

covering the boundary fencing of the accused-appellant.

PW2 and PW6 are the Electricians of the Electric Department, whose evidence reveals that both of them went to the place of occurrence and

found that the electrification of the boundary fencing of the accused-appellant was not from the poll of the Electricity Board; rather, it was from the

house of the accused-appellant. The electrification of the boundary fencing by the accused-appellant was not authorised. They have also deposed

that a bamboo was lying over the road at that time they inspected the same and that there was no electricity post near the cluster of the bamboo or

any other electric cable attached to the cluster of the bamboo. The wire, which is generally used for tying the fencing was found throughout the

bamboo fencing of the accused-appellant upto the cluster of the bamboo and one end of it was drawn to the boundary fence of the accused-

appellant, although there was a little gap from the switch board and the gap was about two metres between the remaining portion of the wire and

the switch board. Such evidence of both the witnesses, i.e. PW2 and PW6 remained completely unassailed during the cross-examination, meaning

thereby, the evidence led by both of them withstand the test of credibility even in their cross-examination.

The other witnesses appeared at the place of occurrence subsequent to the occurrence.

The evidence of the official witnesses, i.e., the Investigating Police Officer and the doctor, PW9 and PW10 respectively, makes it appear that

the deceased got electrocuted and the evidence of the Investigating Police Officer, PW9 is in respect of the fact leading to the occurrence and the

course of action resorted to by him during the course of investigation. His evidence is formal in nature.

The doctor, PW10, who performed the post mortem examination, found several burn injuries on the chest and on the right forearm of the

deceased and some other injuries as specified in the post mortem examination report, marked as Ext.6.

The evidence being as above and the same remained unassailed during the crossexamination, the decision rendered by the learned trail Court

recording an order of conviction of the accused-appellant under Section 304(A) of the IPC appears to have been based on evidence on record

requiring no interference by this Court.

So far as the sentence is concerned, Section 304(A) of the IPC provides maximum substantive sentence of 2 years or fine or both. The

accused-appellant was in judicial custody during the investigation and trial of the case for a period of 3 months and 7 days. Apparently, there was

no intention on the part of the accused-appellant to cause death of the deceased in the instant case although due to his negligence in connecting

electric wire generating electricity to his boundary fence ultimately caused the death of the deceased is but the negligence only. Therefore, while

upholding the conviction recorded by the learned trial Court of Sessions Judge, Morigaon, this Court is of the view that the substantive sentence, if

reduced to the period already undergone, and fine if enhanced from Rs.5000/- to Rs.10000/-, will meet the ends of justice.

Accordingly, while maintaining the order of conviction under Section 304(A) of the IPC, the substantive sentence is modified to the period

already undergone and the fine is enhanced from Rs.5000/- to Rs.10000/-, in default, simple imprisonment for 25 days.

Accordingly, the appeal is partly allowed with the modification mentioned above.

The accused-appellant is directed to surrender before the learned trial Court within one month from today to serve out the sentence.

Send down the LCR along with a copy of this judgment and order.