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Judgment
S.S. Mishra, J.
The present appeal has been preferred by the appellants challenging the judgment of conviction and order of sentence dated 28.02.2026 passed by the learned 2nd Additional District and Sessions Judge, Baripada, Mayurbhanj in S.T. Case No.211 of 2024 arising out of C.T. Case No.825 of 2022 corresponding to Baripada Town P.S. Case No.357 of 2022, whereby, while the appellants were tried for the offences punishable under Section 304 Part-II read with Section 34 of the I.P.C. and Section 135 of the Electricity Act, 2003, the learned trial Court, finding the prosecution to have established its case, convicted the appellants for the offences punishable under Section 304-A read with Section 34 of the I.P.C. and Section 135(1) of the Electricity Act, 2003 and sentenced each of them to undergo rigorous imprisonment for six months and to pay a fine of Rs.5,000/-, in default whereof to undergo further simple imprisonment for one month each for the offence under Section 304-A read with Section 34 of the I.P.C., and to undergo simple imprisonment for six months each and to pay a fine of Rs.5,000/- each, in default whereof to undergo further simple imprisonment for one month each for the offence under Section 135(1) of the Electricity Act, 2003. Both the substantive sentences were directed to run concurrently.
Heard Mr. Tara Prasad Mohapatra, learned Counsel for the appellants and Mr. A.K. Apat, learned Additional Government Advocate for the State.
On 13.05.2022 at about 12.15 P.M., the informant, Raju Mukhi, lodged a written report before the I.I.C., Baripada Town Police Station, alleging that his minor son, Mangulu Mukhi, had died due to electrocution. It was stated therein that on 12.05.2022 at about 12.00 noon, his ten-year-old son came in contact with a live electric wire hanging at a low height and died on the spot. According to the informant, the said live electric wire had been used by the accused persons for taking unauthorized electricity to their house. It was further alleged that the informant and others had, on several occasions prior to the occurrence, advised the accused persons not to draw electricity in such an unauthorized manner, but they paid no heed to such advice and were responsible for the death of his son by electrocution.
On the basis of the said written report, the I.I.C., Baripada Town Police Station, registered Baripada Town P.S. Case No.357 dated 13.05.2022 under Sections 304/34 of the I.P.C. and Section 135 of the Electricity Act, 2003, and directed S.I. R.K. Behera to take up investigation. During investigation, the Investigating Officer examined the informant as well as the scribe of the F.I.R., namely, Pradeep Das. On the same day at about 1.30 P.M., he visited the spot along with the informant and prepared the spot map. The spot was situated at Kalikapur, Ward No.24. He seized one white-coloured single-phase electric wire measuring 22 metres in length and one black-coloured single-phase electric wire measuring 25 metres in length from the spot. He apprehended accused Sahadeb Mohanta, father of accused Mantu Mohanta. During investigation, he ascertained that prior to registration of the present case, U.D. Case No.59 dated 12.05.2022 had been registered in connection with the death of Mangulu Mukhi, which was enquired into by A.S.I. G. Majhi. In the said U.D. Case, the Enquiring Officer had conducted inquest over the dead body and sent the same for post-mortem examination. The Investigating Officer examined accused Sahadeb Mohanta, arrested him and forwarded him to the Court.
On 15.05.2022, the Investigating Officer examined witness Rani Khan and recorded her statement. On 24.05.2022, he apprehended accused Mantu Mohanta, examined him, arrested him and forwarded him to the Court. On 02.06.2022, the Investigating Officer examined A.S.I. Gopal Majhi, who had conducted the enquiry in U.D. Case No.59 dated 12.05.2022, and seized the original case record of the said U.D. Case, which included the final report, case diary, statements recorded under Section 161 of the Cr.P.C., inquest report, dead body challan and post-mortem examination report. Upon completion of investigation, the Investigating Officer submitted charge-sheet on 21.07.2022 against the accused persons for the offences punishable under Sections 304/34 of the I.P.C. and Section 135 of the Electricity Act, 2003. After taking cognizance and commitment of the case, the same was made over to the learned trial Court. Charges were accordingly framed against the accused persons for the offences punishable under Section 135 of the Electricity Act, 2003 and Section 304 Part-II read with Section 34 of the I.P.C.
The accused persons denied the allegations levelled against them and pleaded false implication.
In order to establish its case, the prosecution examined seven witnesses. P.Ws.1, 2 and 5 were circumstantial witnesses residing in the locality where the occurrence took place. P.W.4 is the informant, P.W.3 was the scribe of the F.I.R., P.W.6 was the Investigating Officer and P.W.7 was the Medical Officer, who conducted the post-mortem examination of the deceased. The prosecution also relied upon documentary evidence, which was admitted into evidence and marked as Exts. P-1/1/P.W.1 to P-11/1/P.W.7, including the F.I.R., spot map, inquest report, post-mortem examination report and other connected documents. The defence, however, did not adduce any evidence.
The learned Trial Court, upon appreciation of the evidence of the witnesses and the medical evidence on record, came to hold that the prosecution had been able to establish that the accused persons had jointly left a live electric wire in a dangerous position, resulting in death of the deceased by electrocution. However, the learned Trial Court found that the requisite knowledge to attract the offence under Section 304 Part-II of the I.P.C. could not be definitely attributed to the accused persons and, accordingly, held that the act amounted to a negligent act punishable under Section 304-A of the I.P.C. The learned Trial Court further held that, notwithstanding the absence of technical evidence, the oral evidence adduced by the prosecution was sufficient to establish that the accused persons had dishonestly tapped electricity through the alleged wire, thereby attracting the provisions of Section 135(1)(a) of the Electricity Act, 2003. Accordingly, the accused persons were convicted for the offences punishable under Section 304-A read with Section 34 of the I.P.C. and Section 135(1) of the Electricity Act, 2003. The relevant observations of the learned Trial Court, which led to the judgment of conviction, are extracted hereunder:
“15.When four witnesses who are residents of the alleged locality having no proved animosity with the accused persons consistently implicate them as the persons responsible for dangerous hanging of the live wire and state that accused persons had ignored their request for removal of the wire, and when the death by electrocution is proved by medical evidence, absence of technical evidence and non-production of the wire before the court lose significance. Evidence proves that accused persons jointly residing in a house at Kalikapur had left the live wire in a dangerous position which caused the death of deceased. The culpability is jointly attributable to both the accused persons. Though defence has taken the plea that accused Sahadeb Mohanta was having mental problem and the same has been admitted by PWs 1 & 2, the period of his illness has not been substantiated. It is not proved that during the alleged time accused Sahadeb Mohanta was suffering from mental illness, and that he had no consent in such dangerous act. For charge u/s 304, Part-II IPC it is required to be established that the act which caused the death was done with the knowledge that it was likely to cause death, but without any intention to cause death. From the evidence, knowledge regarding eminent danger and harm can be attributed to the accused persons, but it cannot be definitely said that accused persons had knowledge that wire could cause death of a person. In Cherubin Gregory Vrs. State AIR 1964 SC 205 where death of a person was caused by electrically charged barbed wire fixed by the owner of a house at the back of the house to prevent the entry of trespasser, Hon'ble Supreme Court held the owner guilty u/s 304-A of IPC. The act of leaving the live wire is negligent act of the accused persons and it resulted in the death of the deceased. Therefore, section 304-A IPC is attracted to the facts of the case, rather than section 304, Part-II. 16. Sub section (1) Section 135 of Electricity Act provides that dishonest tapping, making or causing to be made any connection with overhead, underground or underwater lines or cables, or service wires, or service facilities of a licencee or a supplier, as the case may be; shall be an offence. In this case there is no technical evidence, but basing on the convincing oral evidence it has already been held that accused persons had tapped electricity through the alleged wire. The consistency of oral evidence outweighs the absence of technical evidence. The proved act of accused persons in using the alleged wire is squarely covered under section 135(1)(a) of the Electricity Act. 17. In the result, accused persons Sahadeb Mohanta and Manutu @ Kaminikanta Mohanta are held guilty of the offences punishable u/s 304-A read with section 34 of IPC and section 135(1) of Electricity Act and they are convicted thereunder as per section 235(2) of Cr.P.C.”
Aggrieved by the aforementioned findings leading to conviction and sentence recorded against the appellants, the appellants have filed the present appeal.
Upon a careful appraisal of the evidence on record and the facts and circumstances of the case, this Court finds no infirmity in the findings recorded by the learned Trial Court. The testimonies of the circumstantial witnesses, P.Ws.1, 2 and 5, as well as the evidence of the informant, P.W.4, consistently establish that the appellants had been using the live electric wire for unauthorized supply of electricity to their house and had left the same hanging at a dangerously low height, despite objections raised by the local residents. Their evidence, read with the medical evidence of P.W.7, who conducted the post-mortem examination, duly establishes that the deceased died as a result of electrocution. The absence of technical evidence regarding the unauthorized tapping of electricity does not, in the facts and circumstances of the present case, render the otherwise cogent and consistent oral evidence unreliable. Nothing material has been elicited in the cross-examination of the relevant witnesses so as to discredit their testimony or create a reasonable doubt regarding the role of the appellants. This Court is, therefore, of the considered view that the prosecution has successfully established beyond reasonable doubt that the appellants, in furtherance of their common intention, had negligently left the live electric wire in a dangerous position, which resulted in the death of the deceased, thereby attracting the offence punishable under Section 304-A read with Section 34 of the I.P.C. The prosecution has also established the charge under Section 135(1) of the Electricity Act, 2003. Accordingly, the conviction recorded by the learned Trial Court does not call for interference.
At the outset, Mr. Mohapatra, learned counsel for the appellants, fairly submitted that he would confine his submissions to the quantum of sentence. Learned counsel submitted that the occurrence took place in the year 2022 and that the appellants have undergone the rigors of trial for about four years and then have been subsequently convicted by the impugned judgment during the current year and the present appeal has been preferred. It is also submitted on behalf of the appellants that they have undergone certain period as under trial prisoner in custody. It was further submitted that the appellants have since settled in life and that directing them to undergo the remaining part of the sentence would serve no meaningful purpose.
Learned counsel further submitted that the appellants have no criminal antecedents and that no other criminal cases is stated to be have been pending against them. It was urged that they have remained integrated with society over the years and are leading peaceful lives. In such circumstances, their incarceration at this point of time would neither advance the ends of justice nor serve any meaningful penological objective. Accordingly, it was prayed that, having regard to the passage of time, the nature of the offences, the period of custody undergone, the antecedents of the appellants and the overall facts and circumstances of the case, this Court may extend them the benefit of the provisions of the Probation of Offenders Act, 1958.
The record reveals that the occurrence relates back to the year 2022 and the appellants came to be convicted by the learned Trial Court by the impugned judgment and order of sentence dated 28.02.2026. Thus, a considerable period has elapsed since the date of occurrence. It is also not in dispute that the appellants have no criminal antecedents and no other criminal case is stated to be pending against them. The appellants have undergone a certain period of custody in connection with the present case. During the intervening period, they have remained in the mainstream of society and are stated to be leading a settled life. Having regard to the nature of the offence, the circumstances in which the occurrence took place, the passage of time since the occurrence and the antecedents and subsequent conduct of the appellants, this Court is of the considered view that the appellants deserve to be extended the benefit contemplated under the provisions of the Probation of Offenders Act, 1958. The Hon'ble Supreme Court in Chellammal and Another v. State represented by the Inspector of Police1, has held that it is the statutory obligation of the sentencing Court to consider the applicability of the provisions of the Probation of Offenders Act and that any refusal to extend such benefit must be supported by reasons. In the facts and circumstances of the present case, the submission advanced by the learned counsel for the appellants seeking extension of the benefit under the Probation of Offenders Act merits consideration.
The Hon'ble Supreme Court in Chellammal (supra) has elaborately explained the scope, object and significance of the Probation of Offenders Act, 1958 while considering the question of extending the benefit of probation to a convict. The Hon'ble Supreme Court has observed as follows:
“26.On consideration of the precedents and based on a comparative study of Section 360, Cr. PC and sub-section (1) of Section 4 of the Probation Act, what is revealed is that the latter is wider and expansive in its coverage than the former. Inter alia, while Section 360 permits release of an offender, more twenty-one years old, on probation when he is sentenced to imprisonment for less than seven years or fine, Section 4 of the Probation Act enables a court to exercise its discretion in any case where the offender is found to have committed an offence such that he is punishable with any sentence other than death or life imprisonment. Additionally, the non-obstante clause in sub-section gives overriding effect to sub-section (1) of Section 4 over any other law for the time being in force. Also, it is noteworthy that Section 361, Cr. PC itself, being a subsequent legislation, engrafts a provision that in any case where the court could have dealt with an accused under the provisions of the Probation Act but has not done so, it shall record in its judgment the special reasons therefor.
27.What logically follows from a conjoint reading of sub-section (1) of Section 4 of the Probation Act and Section 361, Cr. PC is that if Section 360, Cr. PC were not applicable in a particular case, there is no reason why Section 4 of the Probation Act would not be attracted.
28.Summing up the legal position, it can be said that while an offender cannot seek an order for grant of probation as a matter of right but having noticed the object that the statutory provisions seek to achieve by grant of probation and the several decisions of this Court on the point of applicability of Section 4 of the Probation Act, we hold that, unless applicability is excluded, in a case where the circumstances stated in subsection (1) of Section 4 of the Probation Act are attracted, the court has no discretion to omit from its consideration release of the offender on probation; on the contrary, a mandatory duty is cast upon the court to consider whether the case before it warrants releasing the offender upon fulfilment of the stated circumstances. The question of grant of probation could be decided either way. In the event, the court in its discretion decides to extend the benefit of probation, it may upon considering the report of the probation officer impose such conditions as deemed just and proper. However, if the answer be in the negative, it would only be just and proper for the court to record the reasons therefor.”
Having regard to the aforesaid legal position and considering the facts and circumstances of the present case, particularly the nature of the offences under Section 304-A read with Section 34 of the Indian Penal Code and Section 135(1) of the Electricity Act, 2003, the lapse of more than four years since the occurrence, the period of custody already undergone by the appellants, the absence of any criminal antecedents and the fact that the appellants are stated to be leading a settled life in society, this Court is of the considered opinion that the appellants deserve to be extended the benefit contemplated under Section 4 of the Probation of Offenders Act, 1958, instead of directing them to undergo the substantive sentence imposed by the learned Trial Court. Additionally, the case of the appellants is also covered by the ratio of the judgments of this Court in the cases of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra2 and Dhani @ Dhaneswar Sahu vs. State of Orissa3.
In view of the aforesaid legal position and the peculiar facts and circumstances of the case, this Court is inclined to extend to the appellants the benefit contemplated under Section 4 of the Probation of Offenders Act.
Hence, the present Criminal Appeal, so far as the conviction is concerned, stands unaltered. But instead of sentencing the appellants to suffer imprisonment, this Court directs the appellants to be released under Section 4 of the Probation of Offenders Act for a period of six months on their executing a bond of Rs.5,000/- (Rupees Five Thousand) each within one month with one surety each for the like amount to appear and receive the sentence when called upon during such period and, in the meantime, the appellants shall keep peace and good behaviour and shall remain under the supervision of the concerned Probation Officer during the aforementioned period of six months. However, while extending the benefit of Section 4 of the Probation of Offenders Act, 1958, this Court cannot lose sight of the irreparable loss suffered by the parents of the deceased on account of his untimely death. Though no amount of compensation can alleviate the pain and suffering of the parents occasioned by the untimely demise of their minor son, this Court is of the view that some compensation ought to be awarded to them having regard to the circumstances of the case. Accordingly, as per Section 5 of the Probation of Offenders Act, 1958, each of the appellants shall pay a sum of Rs.20,000/- (Rupees Twenty Thousand only) as compensation to the parents of the deceased, within a period of four weeks from the date of this judgment.
Accordingly, the Criminal Appeal is partly allowed.