Radhey Shyam Giri vs State Of Jharkhand

Heard learned counsels for the parties.

The instant application has been preferred against the judgment dated 12.03.2013 passed by the learned Additional Sessions Judge-IV, Palamau at Daltonganj in Cr. Appeal No.107/2012, whereby the learned appellate court has upheld the judgment of conviction and order of sentence, both dated 08.08.2012, passed by the learned Judicial Magistrate 1st class, Palamau at Daltonganj in G.R. No.2446/2010 (T.R. No.437/2012), whereby the learned trial court found the petitioner guilty for offence punishable under Section 304 A IPC and sentenced him S.I for one year for the offence under Section 304 A and pay compensation of Rs.50,000/- to the informant under Section 357 (3) of the Cr.P.C and in default of payment the petitioner was directed to further undergo two months S.I.

The case of the prosecution in brief is that on 27.11.2010 in the last northern side of village Jharkatia, one electric pole was installed by the Electricity Department and current was flowing through the wire. It has been alleged by the informant-Bibhuti Giri that petitioner- Radhey Shyam Giri had hooked electric wire from that pole to 90 meters for irrigating his field. In the meantime, due to heavy wind, one of the wire fell down on the ground and as a result thereon the son of the informant aged about 5 years came into contact with current. It has further been alleged that when his daughter- Phul Kumari aged about 20 years went to rescue his brother, she also came in contact with current. When they were taken to hospital, the doctor declared them dead.

On the basis of written report of P.W. 1- Bibhuti Giri, who is father of the victims, namely, Mukesh Kumar (5 years) and Phul Kumari (20 years), a formal F.I.R being Lesliganj P.S. Case No.81/2010 was instituted under Section 304 A of IPC. On completion of investigation, chargesheet was submitted under Section 304 A. Based upon which the cognizance of offence was taken by learned C.J.M and the case was transferred for disposal.

The substance of accusation under Section 304 A IPC was explained to the accused to which he pleaded not guilty and claimed to be tried. In the statement under Section 313 the accused denied the charges and claimed himself to be innocent.

In order to prove the charge levelled against the petitioner-accused, prosecution has examined altogether six witnesses. P.W. 1-informant, who is also father of victims, has stated in his examination that while he was working in his field the accused hooked ninety meters naked wire through bamboo for irrigating his field which was broke and fell down. As a result of which, his both children- son and daughter succumbed to injury from current. However, he has admitted in his cross-examination that no such type of occurrence has happened in the past as such the fact of hooking of the wire was never complained before the Electricity Department. He has further admitted that on the hulla of Krishna Bharti, he ran towards the place of occurrence and saw his son and daughter. P.W. 2 is the wife of the informant and she was also not an eye witness as she has admitted that at the time of occurrence she was cooking.

P.W.3 is the Investigating Officer who has clearly admitted that he has no knowledge about the land adjacent to place of occurrence. He had further admitted that he has not found and seized the bamboo and the wire, which was alleged to be the reason for death of the victims from the place of occurrence.

P.W. 4 and P.W.5 are not the eye witness and they came at the place of occurrence on hulla made by Krishna Bharti. P.W. 6 is the Doctor who has conducted the autopsy. Two witnesses have also been examined on behalf of the defence.

Based upon the prosecution evidences and the material brought before him, the learned trial court found the petitioner guilty for the offence committed under Section 304 A and accordingly awarded sentence as aforesaid.

Being aggrieved, the petitioner challenged the order of the learned trial court before the learned Additional Judge-IV, Palamau at Daltonganj, who concurred with the finding of the learned trial court and did not interfere with the judgment of conviction and order of sentence passed by him.

The learned counsel for the petitioner has vehemently argued that it is a fit case where this Court should interfere with the findings of the courts below because the finding given by the learned trial court and concurred by the appellate court is perverse in nature. It is an admitted fact that there was no eye witness to the actual occurrence. Even the informant who claimed to be an eye witness has admitted in his cross examination that on hulla of Krishna Bharti he ran towards the place of occurrence. He further submitted that the time of occurrence or the manner of occurrence has not been proved. The I.O has not seized the bamboo as well as the wire was not found at the place of occurrence as admitted by I.O. He also submitted that from the inquest report the body of the victims were found from the field of informant and not from the field of the petitioner.

Per contra, the learned APP has fully supported the case of the prosecution and prayed that no leniency be granted with the petitioner and the petition should be dismissed.

Heard learned counsels for the parties and perused the material available on record. It is true that revisional jurisdiction is basically supervisory in nature and may be exercised only when there is any glaring defect in procedure or there is any manifest error on a point of law resulting in a flagrant miscarriage of justice. The revisional power of the High Court is much more restricted in its scope and it is only in glaring cases of injustice from some violation of fundamental principle of law by the trial court, the High Court has power to set aside the order.

This is a case where the finding of the learned trial court needs to be interfered for the reasons stated herein below:

a) From the inquest report it is clear that the body of the victims were found from the field of informant and not from the filed of petitioner.

b) There is no eye witness to the main occurrence. As aforesaid, the P.W. 1 claimed himself to be eye witness has categorically admitted that on hulla of Krishna Bharti, he ran towards the place of occurrence. Interestingly, Krishna Bharti has not been examined by the prosecution.

(c) The investigating officer has admitted that he has not seized the 'bamboo' which has been alleged to be used by the petitioner for hooking the electric wire through which the victims sustained injury.

d) The prosecution has failed to examine any person from the Electricity Department.

e) The most vital part which has not been considered by the learned trial court while coming to the conclusion in convicting the petitioner is that there was heavy wind at the time of occurrence which might be the reason for snapping of the naked electric wire. None of the witnesses had refuted this fact rather it is the case of prosecution that at the time of occurrence there was heavy wind. Non-seizure of the 'Bamboo" from the place of occurrence creates a serious doubt and suspicion in the prosecution case and it does not seem to be trustworthy.

In view of the aforesaid facts and circumstances, I am of the considered opinion that the prosecution has failed to prove either manner of occurrence or time of occurrence beyond all shadow of reasonable doubt.

In the matter of Bhagwan Singh and others versus State of M.P reported in (2002) 4 SCC 85 it has been held that the golden thread which runs through web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, the view which is favourable to the accused should be adopted.

In view of the aforesaid reasons, the instant revision application is allowed and the order dated 12.03.2013 passed by the learned Additional Sessions Judge-IV, Palamau at Daltonganj and the judgment of conviction and order of sentence dated 08.08.2012 passed by the learned Judicial Magistrate 1st Class, Palamau at Daltonganj are set aside.

The petitioner is discharged from the liability of bail bonds.

Let the lower court record be sent to the court concerned forthwith.